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js^y 

MJL 



THE LAW AND CUSTOM OF THE CONSTITUTION 



AllSON 



7 



• 

J 

L. 



THE liAW AND CUSTOM OF THE CONSTITUTION 



ANSON 



HENRY FROWDE 



OxFOKs Umiveksity Prxss Wammodsm 
Ambn Cornbr, E.C. 



THE 



LAW AND CUSTOM 



OF THB 



CONSTITUTION 



PABT I 



PARLIAMENT 



BT 



Sib WILLIAM R. ANSON, Babt., D.CL. 

OF TBI IKITBB TUCPLB, BABBIBTBS-AT-LAW 
WABDBV OP ALL BOULfl COLLE0B, OXVOBD 



AT THE CLABENDON PBESS 

M BCCO LZZXYI 
[ All righU reterved ] 



PEEFACE. 



I HAVE endeavoured in this book to state the law relating 
to existing inatitutions, with so much of history as is neces- 
sary to explain how they have come to be what they are. 
The student of constitutional law realises at every turn the 
truth of Dr. Stubbs* saying, that * the roots of the present 
lie deep in the past.' Nevertheless a writer who wishes to 
describe our present constitution and its relations to the 
past, £nds himself involved in difficulty, if he begins at the 
beginning. It is impossible to keep our institutions abreast 
along the course of history, from the Witenagemot to the 
Bedistribution Act, without putting a severe strain upon 
the attention of the reader, and probably, in the end, sacri- 
ficing law to history, the present to the past. The lawyer 
primarily wants to know what an institution is, and then, 
the circumstances of its growth. I have tried to satisfy his 
first requirement, and, as to his second, to put him in the 
way of obtaining more knowledge than I can pretend to 
possess. 

Nor again, have I attempted to delineate the law of our 
constitution after the manner of Professor Dicey. He has 
drawn with unerring hand those features which distinguish 
our constitution from others, and has given us a picture 
which can hardly fail to impress itself on the mind with a 
sense of reality. I have tried to map out a portion of its 
surface and to fill in the details. He has done the work of 
an artist. I have tried to do the work of a surveyor. 

I have dealt^ in this volume, solely with Parliament^ and 



VI PEEFACE. 

hope in a subsequent volume to deal with the Executive. 
Writing for students, I have treated some matters more 
fully and others less fully than the practical lawyer may 
think necessary ; but where I have been brief I do not 
pretend to have written with a reserve of knowledge, 
and I have often said no more because I had no more 
to say. 

W. R. A. 

All Souls Collkoc, 
March 1886. 



TABLE OF CONTENTS, 



CHAPTEB I. 

PLAGE OF OOKBTITUTIONAL LAW IN JUBIBPBtTDfiKOX. 

PAGE 

Onutifeaiioiial l*w is a famioh of Public Law a 

KeoeBsHj of enquiry into Btmcture of State a 

Hie begimuxigB of State control 4 

The strength of the State the foundation of Jnrispinidenoe ... 7 

Hie oomplezity of the State makes the dlAonlty of oonatitntional law . 9 

Topics akin to constitational law, but which need to be distinguished . 10 

CHAPTER n. 

HI8TOBICAL OUTLUnS. 

The Saxon constitution la 

The Konnan administration 13 

The constitution of Edward L 15 

The growth of political power of Commons 15 

„ „ „ in relation to the executive • i? 

„ „ „ „ legislation . .18 

Hie feudal king 19 

The Reformation and the Tudor monarchy ao 

The Stuarts and Parliament ai 

Crown and Parliament^ 1660-1688 aa 

Hie modem constitution 2^ 

Cabinet and party goTemment a; 

The United Kingdom and its dependencies / 29 

CHAPTER m. 

BOMB OHASACTBBISTICB OF THX BNOLI8H OONBTITUTIOlf. 

Its gradual growth 31 

Consequent dirergenoe of theoiy and practice ..... 3a 

It is unwritten 35 



X CONTENTS. 

PAQB 

3. How tbey may choose iia 

ListrHmtion of 8«aU, 

Changes in county representation before 1 8 ja .112 

„ borough representation before 183a • 1^3 

Effect of Reforms of 183a and 1867 114 

,p Bedistribntion Act, 1885 115 

Single member oonstitnencies 117 

Hegiairatum. 

Dnties of Clerk of the Peace .118 

,, Overseer 118 

„ Revising Barrister .119 

The register, how far oonclnsiTe X19 

Mode qf Election. 

Procedure before the Ballot Act lao 

Present procedure, the nomination lai 

The poll lai 

Sepresentaiion of minoriHee, 

Fancy franchises 123 

Self-made constituencies 133 

Three-cornered constituencies ia4 

Proportional representation ia5 

Objects of the various schemes 137 

4. Privileges of the House of Ck>in2noxis. 

Outline of the subject 129 

I. Qffleer* of the Souee and Procedure for contempt. 

The Speaker 131 

The Chairman of Committees 13a 

The Clerk of the House 133 

The Serjeant at Arms 133 

Process for contempt 134 

a. Privileges demanded 6y the Speaker. 

Formal privileges 135 

Freedom from arrest 136 

Freedom of speech 139 

Freedom of speedi and the exclusion of strangers 14a 

Freedom of speech and the publicatioa of debates • '43 

Reporting in 17th and 1 8th centuries 144 

Conflict between the House and the City • I45 

Reporting still on sufferance 145 

Limits of right to publish 146 

Stockdale v. ffaneard and Waeon v. Walter . * '47 

3. Privilege* of the Houee not demanded by the Speaker. 

Right to provide for its proper constitution .... 148 

By order warrants for new writs 148 

By noting disqualifications 149 

By trial of disputed returns 149 



CONTENTS. XI 

PAGE 

The ctse of Fortescne and Goodwin 150 

The GrenvUle and Parliamentary electioDB Acts 152-3 

Bight to exelnBive oognizance of matters arising in the House 153 
Qlostrated by case of Bradiaugh y. Gouei . -154 

Limits of the right 155 

Power to inflict pmiishments to enforce privilege . .156 

By fine 156 

By expulsion 156 

By commitment . 157 

Gronndi of right to commit 157 

4. Limitation qf Privilege hy Court* of Law. 

Claims of the House to determine its pririleges • '59 

Thecaseof J^jl^y ▼. 7F%i^ 160 

„ y, y, of StockddU v. Han9(trd .... 161 

The true nature of Privilege 163 

Expounded in Bradiau^h v. Gouet 164 

The cause of commitment need not appear .... 165 

But if it does the Courts will consider its adequacy . 167 

CHAPTEE VI. 

THB HOUSB OF LOBDS. 

Outline of the subject .168 

I. The Baronafft as an eHate of the realm. 

The Great Council and the Norman baronage .... 171 

The mo/oret ^ron«9 of the charter 171 

The baronage of Edward 1 172 

It rested upon summons 172 

Summons conferred hereditary right i73 

a. Diffienitiesin determimng estate of baronage. 

From mode of creation I74 

From connection with tenure I74 

Settlement of disputed questions 17^ 

3. Real or sitpposed restrictions on creation. 

In the case of the Scotch peers ^77 

y, „ the Irish peers i7^ 

Permissible limitations of peerages . ...... 178 

Baztmies by tenure 180 

The J?€rl:eley peerage case iBo 

The Peerage biU of 1 7 19 183 

4. Bedl or supposed restrictions on summons. 

The case of baronies by tenure 184 

„ „ of Scotch and Irish peers 1^5 

„ ,, of Spiritual p^rs 186 

Descendibility of peerages 186 

Hie case of life peerages 1S8 

The case of aliens and bankrupts 19' 



XU CONTENTS. 

PAOB 

5. DUqualiJleationi for fitting and voting. 

InfEincy 191 

Felony 19a 

Sentenoe of the House 192 

Ineapadtj to take the oath 193 

6. Mode» of acquiring the right to 9it and vote. 

Peers of the United Kingdom 193 

Bepresentative peers of Scotland 194 

Bepresentatiye peers of Ireland 196 

Spiritual peers 197 

Lords of Appeal aoo 

Introduction of peers aoi 

Their rank and precedence aoi 

7. Privileges of the Souse, 

The Speaker of the House of Lords aoa 

Freedom of the person, of speech and of aooese to the Crown . 303 

Bight to exclude disqualified persons 204 

Bight to demand presence of its members .... 205 

Bight of commitment 205 

Proxiee and protests ao6 

Judicial duties 206 

CHAPTER Vn. 

THE PB0GES8 OF LEGISLATION. 

Outline of the subject 208 

1. AntiquitleB of legislative prooedure. 

Bights of Commons in respect of taxation a 10 

tt » n n legislation 211 

Conflicting claims of the Crown 211 

Statute and Ordinance 212 

Claim of the Crown to legislate by Ordinance 213 

Doubtful points in early procedure 214 

Need for concurrence of the three estates . 2\^ 

The peers as Councillors of the Crown 214 

Legislation upon petition 215 

Uncertainty arising from it 216 

The Commons begin to draft bills 217 

The three readings of a bill 218 

Increased power of Parliament 219 

2. Ordinary procedure of the HouBes. PabUo Bills. 

Business of each day ; priyate business 221 

Public petitions. Notices of motion 221 

Motions for leave of absence 222 

Questions and Orders of the day 223 



• • 



CONTENTS. XIU 

FAOK 

A public bill in the CommonB 324 

Exceptional procedure 325 

A bill in the Lorcb 227 

Mode of settling disagreement between the Hoasee .228 

8. Konsy BillB. 

The Commons have ezdnsiTe control over them . . .230 

Money is only granted on request of the Crown .... 232 

And in Committee of the House 234 

Committee of Supply 234 

Committee of Ways and Means 236 

Appropriation Bill 237 

4. Private BUI laegialatioa. 

Historical outline 239 

Character of procedure 241 

The bill in the House 242 

The bill in Committee 243 



CHAPTER VIII. 

THB CBOWK IN PABUAMEKT. 

The Crown as constituting Parliament 245 

Statutoiy securities for annual sessions 246 

Practical securities 247 

The Crown in communication with Parliament 248 

The speech from the Throne 248 

The Boyal presence in the Lords 249 

In the Commons 250 

Boyal messages 350 

The Crown as a party to legislation 252 

The Boyal assent by Commission 253 

To a public bill 354 

To a private bill 355 

To a money bill 356 



CHAPTER IX. 

THX SZBOUTIVJS AKD LEGISItATUBE IK CONFLICT. 

Outline of the subject . . • 358 

Claim$ of Hke Crown to independent legielative powers. 

The Ordinance and the Proclamation . . 359 

The Statute of Proclamations 360 

TTse of Proclamations by Tudors and Stuarts 361 



XIV CONTENTS. 

PAOX 

OpinioDB of the judges on their Talidity 26a 

niuBtrationB of legal and illegal Prodamaiions .... 263 
In,Urfereiiice hy the Crown toitk the operation of law. 

The dispensing power, its nue'and abuie 365 

niustration of its use. Thomas v. Sorrell 266 

Hlostration of its abuse. G-odden ▼. Halee 268 

The suspending power . . . , 271 

The declaration of Indulgence and the Seven Biahops . .272 

TaxaHon, 

The forms of the difficulty between Crown and Parliament -373 

Indirect taxation : the case of ^af^ 275 

The Commons protest against Impositions 275 

Substance of Hakewill^s speech for the protest . . . -275 

Direct taxation : the case of Hampden 280 

Exaction of ship money, and proceedings thereon .... 280 

Arguments of Hampden's counsel 281 

Statutory settlement of the question 282 

If^/lAunce of the Executive on the legielature. 

. Modes of its exercise 284 

Creation of boroughs 284 

Interference with elections 285 

Polioy of the first Stuarts 286 

Parliamentary management after the Bestoration .... 287 

And during the eighteenth century . ^ . . . . 289 

Modes of influencing members 290 

Offices: pensions 290 

GoYemment contracts : shares in loans 291 

Payment for votes 292 

Honours and dignities ........ 294 

Purchase of boroughs 295 

Corruption of constituencies 295 

Influence of the Crown upon the Lords 296 

By expression of opinion . . . - 296 

By creation of peers , . 297 



CHAPTEE X. 

THE HIQH COUBT OF PABLIAMSNT. 

Parliament not solely concerned with legislation . ... . 299 

Its direct judicial powers 3<^ 

Original jurisdiction claimed by the Lords ••.... 300 

And by the Commons 300 

Actual jurisdictions exercised 30^ 

(l) Impeachment 3^' 

Procedure in case of impeachment 3^3 

Points of controversy 3^5 



CONTENTS. XV v 

PAOB 

(a) AppelUte joriBdictionofiheHoiiBeof Loidfl 306 / 

(3) The right of petitioiung 309 ^ 

Ancient fonoB of its exercise 309 

Appointment of receivera and trien 310 

Petitions lesiilting in private bills 310 

Pablic petitions 311 

Bales as to malring and reodring them 31a 

(4) Committees of inquiry 316 

(5) Address for removal of servants of the Crown 316 

Procedure in such cases 31 7 

Such addressee distinguished from addresses of want of confidence . 318 

Control of Execative exercised by Parliament 319 



INDEX OF STATUTES. 



Magna GarU I4>4^» iS^i ^78* 3^9 

Confirmatio Cartemm 210^278 

Be TUlagio non eonoedendo 378 

15 Ed. H Legiilatiye power of GommoDB ... 44,311,314 

a Ed. m. 0.9 ImpodtioDB 378 

4 Ed. in. c 14 Annual BeerioiuB of Parliament 346 

T4Ed.in. iii.1. c 31 ... CnstomB on wool 378 

14 Ed. III. It. 3. 0. 4 ... Customa on wool 374 

45 Ed. III. c. 4 Gnstoms on wool 374 

i3Rie.n. e.1 Charters of pardon 36(> 

iHoi. IV. 0. 14 Appeals in Parliament 303 

7Hen.rV. C.15 Procedure at elections ... ; 54i90 

I Hen. y. 0.7 Bendenoe in constituencnr 83,90^386 

8 Hen. VI. c. 7 Qualification for county franchise ... 92,103 

23 Hen, yi. c. 15 Procedure at elections 54» 90 

4 Hen. Vm. o. 8 ... Privilege, freedom of speech 139 

Hen. VIII. c. 9 ... Leave of absence for members 158, 323 

35 Hen. VIII. o. 30 ... Appointment of bishops 198 

3iHen.Vni. a8 ... Proclamations 300 

0.10 ... Precedence of peers 303 

33 Hen.Vin. C3I ... Royal assent by commission 353 

35 Hen.VIII.c. II ... Wages of members 113 

1 Ed. VI. 0.13 Repeal of statute of Prodamationa 360 

5Elia.c. I Oath of supremacy 57 

iJaa.1. c. 13 ..*. ... Privilege, freedom from arrest 137 

7Ja8. 1. 0.6 Oath of allegiance 57 

3Gar. I. c. I Petition of Right 33,279,283 

16 Gar. I. c. 8 Assent of Parliament to impositions 280 

. . . o. 10 Giiminal jurisdiction of Coimoil 263 

... c 14 Illegality of ship-money 282 

13 Gar. n. c 34 Abolition of military tenures 183 

. . . . c. 35 Sale of wine by retail 366 

15 Gar. IX. o. 10 Subsidies 45 

16 Gar. n. c I Session of Parliament every three years ... 346 

16& 17 Car. n. o. I ... Subsidies ^5 

35 Gar. II. 0. 3 Tests Act ... 3o8 

y>Gar. n. o. I Parliamentary oath 57 

I WilL ft Mary, St. 3.0. 3 Bill of rights 34,35 

Freedom of speech 141 

Standing army in time of peace 348 

Dispensing power 369 

Suspending power 373 

xaxacion ... ... ... ... ..• *•• ••• 2o3 

Right of petitioning 313 

o. 31 SpoUcer's precedence 131 

5'Vn]l.ftMary,o. 7 ... IHsqualification. Collectors of excise ... 390 
o WUL & Maiy, o. 3 ... Triennial Act ^5> H^ 



XVIU 



INDEX OF STATUTES. 



7& 8 Will. m. 0.15 ... 
..... .0.35 ... 

ia&i3Will.III.o.a ... 



'4 Anne c 8 ... 

5 Anne o. 8 

6 Ajine c. 7 

9 Anne c. 5 

10 Anne 0.33 

I Geo. I. St. 3. o. 38 
I Geo. I. St. 3. 0. 56 

3 Greo. n. o. 34 ... 

11 Geo. n. c. 34 ... 
15 Geo. II. c. 33 ... 
10 Geo. III. o. 16 ... 
14 Geo. III. c. 58 ... 
33 Geo. III. c. 45 ... 
33 Geo. III. c. 83 ... 

37 Geo. m. 0. 13 ... 

40 Greo. in. o. 67 ... 

41 Geo. m. o. 53 ... 
41 Geo. in. 0. 63 ... 

4 Geo. rV. c. 55 ... 
10 Geo. rV. o. 7 ... 



c 3 ••• 

CIO... 



••* 



•. * 



•* . 



3 & 3 Will. IV. c. 45 ... 



. c. 05 ... 



0. 88 


... 


3&4Yict. c 9 ... 


... 


XO& II yict.c. 53 


... 


13 k l3Viot.c9i 


... 


13 &; TAYict. 0. 09 
15 & loYict. 0. 33 


•■• 


••• 


16 & i7Yict. c. 15 


.* . 


0.68 


... 


i8&i9Yict.o. 84 


... 


19 & 3o Yict. c. 58 


•*• 


31 & 33 Yict. c. 36 


... 


.... 0.78 


*. . 


• • . . 0* 49 


••• 


34 k 25 Yict. c. 53 


••• 


37 k 38 Yict 0. 34 


... 



PAGI 

Diflsolntion on demise of Crown 66 

Infant'i diaqualification 70 

Fagot Yotet m 

Act of Settlement. 

DiaqiuJifioation of placemen ^S, 74 

of aliens 73,191 

Pardon not pleadable in bar of impeachment 305 
Judges remoTable on address of Houses ... 338 

Privilege. Freedom fipom arrest 137 

Disqualification. Collectors of customs ... 390 
Bepeal of official disqualifications in Act of 

Settlement 75 

Act of Union with Scotland 30 

Art. 33. As to peerage ... I77i i85> i94« ^95 
Disqualification of office or pension 75, 77, 390 

Land-qualification 83 

Multiplication of votes iii 

Septennial Act 65 

Disqualification. Pensions 77, 390 

Effect of decision of Election Committee ... 98 

Privilege from arrest 138 

Disqualification. Offices 390 

Grenville Act. Trial of disputed returns 153, 316 
Residence in constituency not required 83, 93 

Government contracts 78, 391 

Disqualification of court officials ... 76,390 

...... pensioners 77 

Dissolution on demise of Crown ... 66 

Act of Union with Ireland 30^73 

Art. 4. Rights of Irish peerage 177,185 

Government contracts and Irish members ... 78 
Disqualification of clergy, English and 

Scotch, for Parliament 73 

Infancy a disqualification (Ireland) 71 

Roman Catholic Relief 73 

Disqualification of priests 73 

Substituted oath 80 

Reform Act (England) ... 93, 99, 103, 104, 105 

Redistribution of seats 114,115 

Disqualification of returning officer no 

Reform Act (Scotland) i o3, 104, 105 

s. 36. Disqualification of returning officer . 74 

Reform Act (Ireland) 103,104,105 

Privilege of publications by order of Houses 147 

Scotch representative peers 178, 195 

Disqualification, rate collector, Dublin ... 77 

Franchise in Ireland 103, 104, 105, 106 

•*. ... •.. 49 

..« ••. ... X3 K 

74 
13^ 

109 
84 



Return of writs for elections 

Polling at elections 

Disqualification of returning officer 

Speaker's deputy 

Disqualification of persons employed in reg^s- 

wIb vlOU ... ... ... ... ... ... ... 

Qualification of land abolished 

Committees of Lords and Select Committees 
of Commons forprivate bills may administer 
oa wi ... ... ... ... ... ... ... ... 

Jewish disability, removal 

Yoting at University elections 

Under-Secretaries in Commons 



316 
80 

133 

77 



INDEX OP STATUTES. 



XIX 



29 ft 50 Vict. c. 19 

$0 ft 31 Vict. o. 81 

.... c. loa 



•>• 


««» Qm . m-vmm 


^f f*^ • • • 


• 

• 
• 

• 


• • . 
... 
... 

ft 33 "^ct. 

... 


c 49 ... 

c. 7a 

c. 125 ... 

c. 3 

0. 15 


• 
• 

■ 

33 


• . • 
... 

ft 34 Vict. 


c 43 
0. 41 

C.68 

c. 14 


• 

• 

34 


... 
ft 35 ^^<^' 


c. 33 

0.49 

0. 70 


• 


• • • 
. . • 


0.50 
0.83 


• 


• . • 


c. 116 ... 


35 * 3^ '^ict- 
37 ft 38 Vict. 


c-33 
c aa 


38 ft 39 Vict. 


c 77 ... 


39 
4» 

• 

45 


ft 40 Vict, 
ft 4a Vict. 

ft 46 viot. 


c 59 ... 

a 4 ... 
0. ao 

c. 49 


46 ft 47 Viot. 

47 ft 48 Vict. 

48 Vict. 0. 3 

. . e.15 
48 ft 49 Vict, 
• • • • 


c 51 
c. 5J 

0. 30 

•■• ••• ••• 

• • • • • • 

0. a3 
C4^ ... 



••• ••• ••• ••• ••• 



• •• 



••• §•• ••• 



• • ■ • • • 



iia 
106 
57>8o 

i49» 153 
aoo 



PAGB 

ParHamentazy oath 80,81,82,154,193 

Prorogatioii df Parliament 64 

Bepresentation of the people (England) 

93» 103* 104, 106 

B. a7. Fagot ToteB iia 

■. 40. Beoeipt of almg no 

8.51. Demise of Crown 67 

Bepresentation of the people (Scotland) loa, 106 

8. 14. Fagot votes , 

Bepresentation of the people (Ireland) 

Promissory oaths 

Parliamentary electionB 

Besignation of bishops . . . 

GiyH service pensions no disqualification for 

Commons 77 

Nor diplomatic pensions 77 

Assessed rates 100,106 

Law of evidence amendment 8a 

NatanJisation. Disqualifications of aliens 

7a, 191 

Disqualifications of convict 78, 1 10, 1 9 1 

Law of evidence amendment 8a 

President of Local Government Board may 

sit in Conmions 

Disqualifications of bankrupt 

All Committees of Commons may administer 

0» wu •*. ... ... ... ... ... ... ... 

Bepeal of statute excluding lawyers from 

county seate 

Ballot Act ... 45, 47, 51, 53, 109, lao, lai 
Bemoval of disqualifications of revenue 
omoers •*. ... ... ... ... ••• ... 109 

Judicature Act 53 

Judges' disqualification 74 

Appellate Jurisdiction Act aoo 

Polling places ... laa 

Bating and registration 99» 100 

Conmiissions in militia no disqualification for 

Commons , 77 

Corrupt practices 79, no 

Bankruptcy ... 79, 191 

Privy Seal Act 34 

Bepresentation of the people 34, 103, 104, 105, 106 

B^istration 118 

Bedistribution of seats iia, 115 

Medical relief no 



77 
191 

316 

84 



••• 



CHAPTEE I. 

THE PLACE OF CONSTITUTIONAL LAW IN JURISPRUDENCE. 

A BOOK which professed to be a treatise on the English llie need to 
Constitation might well consist of such vanons ingiedients gabject, 
as to make it very desirable to attempt at the outset some 
limitation or definition of the subject. If the law and custom 
of the Constitution is to be laid before the reader in an 
intelligible form, the writer has constantly to keep in mind 
the &ct that, though nearly every law and every custom of 
the Constitution has a history — sometimes a long and inter- 
esting history — yet that it is the Constitution as it now exists, 
and not the history of Constitutional law with which he has 
to deal. And, again, although the operation of these laws 
and customs has to be explained as a matter of present living 
interest, it must be borne in mind that we are dealing with 
law and practice, and not with political science or political 
criticism. 

At starting, therefore, I have to distinguish the subject as distinct 
of which I propose to treat from the topics dealt with on the stitutionai 
one hand in the classical constitutional histories of Mr. Hallam ^"^T 
and Dr. Stubbs, and on the other in the admirable account 
of the practical working of the English Constitution by and politi- 

* - cal wdence, 

• 15 



2 CONSTITUTIONAL LAW IN JURISPKUDBNCB. [l. 

Mr. Bagehot. I have to make it clear that I am dealing with 
rules of law, and with customs which have grown up around 
these rules, obscuring in some departments the rules themselves. 
It may b^^indeed it is — practically impossible to explain 
existing Law and Custom without some reference to its his- 
tory, or to state existing practice without some account of the 
reasons for the divergence of the legal and the conventional 
Constitution ; but such matters are illustrative and subordinate. 
The Laws and Customs, not their history or their political 
value, are what I am concerned with. 
Constitu- To define my subject, it is necessary to determine the 
^^ Juria^^ place of constitutional law in the Corpm Juris of the coimtry, 
pradenoe and to distinguish, once for all, those topics with which 
constitutional law is apt to be confused. 

In order to find the place of constitutional law it is needless 
to go further than Professor Holland's analysis and classi- 
fication of rights. A right is 'a capacity residing in one 
man of controlling with the assent and assistance of the State 
iB a bnncli the actions of another.' Bights which may be enforced by one 
Lav; citizen against another constitute the body of Private Law. 
Bights which the State asserts to itself against the citizens, 
and rights which it permits to be exercised against itself, con- 
has to do stitute Public Law. But inasmuch as the State is an artificial 
and dutiM P^^^^^' ^^^' ^ Buch, assumes to itself the right to maintain 
of Boye- order, to enforce the rules of conduct which it lays down, to 

reign 

possess property and compel the performance of contracts made 
with itself, and inasmuch as it is willing to incur proprietary 
and contractual liabilities, we need to enquire how this artificial 
person is constituted, and in this enquiry lies the chief labour 
of the constitutional lawyer, 
and itruo- The Sovereign body or State is the power by which rights 
State. <u^ created and maintained, by which the acts or forbearances 
necessary to th^r maintenance are habitually enforced. This 
power in our community is difiused among a number of 
persons ; in other words, our State is of complex construction. 
It oonsists of a number of persons or groups of persons who. 



I.] THE MATTER OF CONSTITUTIONAL LAW, 3 

in virtae of the part which they play in the working of 
the constitution, possess rights one against the other, and 
against the citizens in general. Their status is coloured by 
the fact that they are a portion of the machinery of Govern- 
ment. 

The Crown is not Sovereign, nor is either House of Par- 
liament, still less are the ministers or servants through whom 
the Crown conducts the executive business of Government, but 
each of these has its established relations to the others, and to 
the general body of citizens, some fixed by law and some by 
custom. For the State machinery may be said to consist of 
all who take part in the malring or changing of the laws by 
which rights are created and protected, in the maintenance of 
order and settled rules of conduct within the community, in 
preserving its independence or representing it in its deal- 
ings with other communities. The connection and relations 
of these persons form the constitution of the country. 

The analysis of this constitution, which forms the working 
machinery of the State, the consideration of its various parts, 
and the relation in which they stand to one another, is what I 
propose to undertake in respect of our own country. 

But when we talk of the State, its rights or its structure. We need to 
we are necessarily led to the inquiry, What do we mean by the ^^ m^,^ 
state ? The expreesion is sometimes used aa equivaleiit to an ^J^*; 
entire community or independent political society ; sometimes 
it is limited to the sovereign body in that society. When we 
say that a man has deserved well of the State, we generally 
mean that all persons in the community ought to be grateful 
to him. When we say that such and such things should be 
provided or attended to by the State, we mean that the law- 
making force of the community or its adminislarative force 
should compel a course of conduct in certain matters. 

It is the more important for the purposes of a consti- The State 
tutional lawyer to ascertain what is meant by the State, 
because, as I have already said, he is concerned with it's 
structure ; and forther, his province cannot be precisely defined 

B Z 



4 CONSTITDTIOITAL LAW IN JUBISPBUDBNCB. [l. 

without some pains. And we may help ourselves to a 
clearer conception of the matter bj looking at the earlj 
history of societies, 
when rules We need not trouble ourselves with the shifting groups 
u« en- of men who form the lowest types of savage life ; it is 
I^o^nf "C^rly enough to begin with aggregates bound together by 
power. ties of real- or supposed kinship and by common customs. 
And when these customs begin to be observed in deference 
to some other authority than the individual violence or 
general ill-will that arises from their breach, we are able to 
trace the first germs of the State. Whether it is a council of 
priests, or of elders, or an individual habitually exalted above 
the rest by his strength or his cunning, so soon as conduct is 
enforced by some sanction, the fear of some evil or the hope of 
some good, however indeterminate or occasional, which is not 
the arbitrary will of the casual bystander, or the general 
inclination of tiie crowd, we see the humble beginnings of the 
State or Sovereign. 
Saoh power The action of the State is at first inconsecutive and nn- 
slight, certain. It dare not depart from custom. It waits to be 
appealed to, and does not enforce conduct by fixed rules invari- 
ably carried into effect ; it cannot always compel obedience to 
but ita its own decisions. But in proportion as its power is weak its 
^de^ sphere is wide ; religious observance and moral action, as well 
as the maintenance of order and the performance of promises, 
are its concern. The laws of the people of Israel cover every 
Afl in the department of life— diet, cleanliness, domestic relations, re- 

Jewiflh 

polity. ligious observance, and many rules of general conduct which 
are observed in more highly organised communities either as 
matters of habitual morality, or by a few who aim at a life 
higher than that of the crowd. But set in the midst of this 
elaborate code are provisions which show the difficulty of 
bringing its enforcement under State control. The people 
are earnestly exhorted not to depend upon themselves for the 
decision of matters of controversy, each within his gates, but to 
make use of the courts indicated by the lawgiver, and, having^ 



I.] STATE CONTROL IN BABLT TIMES* 5 

there obtained judgment, to abide by the decision of the 
judge ^. 

Again, it is impossible in looking at the Laws of the The 
Twelve Tables not to be struck, not merely by the variety of 
detailed provisions as to the breadth of roads and the conduct 
of funerals, but by the position and importance assigned to 
Procedure. The first two tables are occupied with the rul^s 
for getting parties before the court and keeping them there 
till the dispute is settled. The third regulates the mode in 
which the successful suitor may put into execution the decision 
of the court. The whole is a good illustration of the extent of 
State interference, of the misgivings of the State as to its 
powers of action, and of the desire of the State to obtain for 
its tribunals the settlement of disputes. The Roman State 
was at this time a community sufficiently well organised to 
have a reasonable prospect of enforcing the sentence of its 
tribunals if it could once obtain submission to them ; but our 
own histoiy furnishes us with an instructive illustration of the 
difficulties of a society which had no machinery for carrying 
out the decisions of its courts and could at best provide for the The Anglo- 
settlement of quarrels by some general rules, the observance 
of which might confine disturbance within reasonable limits. 
Mr. Green gives a vivid picture of the course of proceedings Conquest 
by which an offender was put outside the protection of the p. a^ *" ' 
folk and ceased to be within its peace. But the folk could do • 
no more than withdraw its protection ; it had no means of 
enforcing a punishment ; this was left to the individual. All 
that the community could do was to say that the injured man 
might apply a violent remedy without incurring its wrath ; 
and it was the want of central force to strike at the offisnder, 
the incompatibility of the private feud with public order that 
reconciled the Saxon people to the substitution of the king's 
peace for the folk's peace, of the strong arm of the executive 
for the general disapproval of the community, of State inter- 
ference for laissez faire. 

* Deuteronomy zvii. 8. 



6 CONSTITUTIONAL LAW IN JURISPRUDENCE. Cl. 

So soon as we find a community entrusting to some person or 
body of persons among its members the task of maintaining and 
enforcing its customs, we may say that we have found i«Iie 
beginnings of the State ; but in all communities which have 
attained to a high degree of political development, no sooner 
does this force manifest itself in definite and systematic work- 
ing than its ftinctions become more various and there takes 
place among those who have the exercise of it a separation 
into what in modem States we call the departments of 
Government. The maintenance of order and custom ceases 
to be dealt with by those who lead the armed forces of tKe 
society ; the functions of the warrior are no longer combined 
with those of the judge ; custom needs change as time goes 
on, or new customs growing up to the detriment of the old 
need to be checked by some general commands, and a lawgiver 
is required or a legislative assembly. To fight, to do justice, to 
assess and collect money, to make laws^ is a heavy burden for 
an individual monarch or even for a body of men who have 
to act jointly in such matters. These duties come to be dis- 
charged by different servants of the same king, or by persons 
or bodies whom the popular choice elects. The original cen- 
tral force passes into more numerous hands, but its action 
becomes more constant and vigorous. 

This dispersion of the forces which make up the Sovereign 
is one difficulty in the way of the Austinian analysis of 
Sovereignty. There is another which Austin made for him- 
self by the arbitrary and unhistorical assumption that the 
Sovereign was at all times, and for all purposes, omnipotent : 
that there never was a time when it could not alter at will 
such rules of conduct as it habitually enforced. 
The State For, Legislation, in so far as it means the breaking up of 
b^t^does customs and the introduction of new rules of conduct, is a 
^^^^"^^ thing almost inconceivable to an early state of society* The 
maintenance or restoration of the ^^tus quo ante in personal 
freedom and property, was the object alike of the Jewish land 
law and of the Solonian Seisachtheia ; the ideal states of the 



I.] MODERN LIMITATIONS ON STATE CONTROL, 7 

Greek philoBophers were so constracted as to avert, if possible, 
the chance of development or change. To look nearer home, 
the earlier volumes of our Statutes are full of minute regula- 
tions on matters of local or social custom, but when an import- 
ant change in the law is contemplated the long and apologetic 
preambles, such as we read in the Statute of Wills, show how 
much explanation was needed to make it acceptable to Farliar 
ment. To a modem House of Commons it is almost enough till laie in 
that a practice has prevailed for a long time to create an ^' 
impression that such a practice must need examination and 
revision. But the step is a long one from the time when the 
State first enforces custom vigorously and constantly, to the 
time when it takes upon itself without fear or hesitation to 
recast or alter custom* 

And we must further note that in proportion as the State And as it 
becomes stronger, more complex, more active, so does it defin^ B^onger 
its sphere of action in such a way as to exclude from its opera- ^^ sphere 

* ^ "^ * narrows. 

tion those rules of conduct which are better left to the guidance 
of the moralist and the priest. The State, as conceived by the 
lawgiver of Deuteronomy, swept with its intermittent action 
the whole area of human conduct; but the modem legislator, 
who can apply constant uniform pressure to procure the acts 
and forbearances which he desires to enjoin, strives hard to set 
limits to state interference, to keep religion and morals wholly 
outside these limits, to ascertain with precision what it is best 
to leave to the individual and what must be enforced by the 
central authority. 

But what we axe chiefly concerned with is not so much the The 
sphere of state action, or, in other words, the amount and o/tibeStata 
direction of the forces which the State brings to bear upon ^.^® ^^^ 
individual conduct, as the existence, the strength, and thepmdenoe. 
complexity of these forces. For these forces are the State ; 
their strength makes it sovereign ; their complexity is what 
the constitutional lawyer has to unravel. The power to strike 
at offenders within and without gives to States and maintains 
in them an individual existence: it preserves them from 



8 



CONSTITUTIONAL LAW IN JURISPRUDENCE. 



[I. 



ItB nilef 
«re Law: 



inward collapse and from absorption into the existence of other 
States outside them. We do not allow that because the col- 
lective force of the community — in other words, the State — 
narrows its sphere of action, it thereby admits a diminution 
of its power ; nor do we allow that because the machinery 
for setting it in motion is complicated — in other words, 
that political power is vested in many hands — its action is 
therefore less regular and certain in the enforcement of such 
rules of conduct as are essential to its existence. Any role 
of conduct which is backed by such a force is Law. All acts 
or forbearances to which we are driven or inclined otherwise 
than by this are assignable to a different sanction or con- 
straining force. 

A violent wind may blow a man against another in the 
street, or a stronger than he may take his hand and compel 
his signature to a document, or a fear of personal injury may 
prevent him from telling what he knows; and this is the 
physical sanction. 

Or a desire to obtain the good opinion of others, many or 
few, or to conform to a standard of conduct which he conceives 
to be good for himself or for the world at large, may make a man 
give up pleasure or endure pain ; this is the moral sanction. 
Or a fear of wrath to come, or a desire for the growth within 
^on" '^^ ^™ ^^ ^ spiritual life, may determine a man's conduct ; this is 
the religious sanction. 

And so a man may be deterred from picking a pocket by 
fear of God's anger or care for the spiritual life ; or by the 
knowledge that his neighbours will condemn him ; or because 
the man whose pocket he was going to pick turns round and 
catches his wrist ; all these forces or sanctions may affect his 
is the poli- conduct. But, at any rate, this sanction must be present to 
^onorLaw ^^ mind that the State, or the community in its political 
proper. character, has taken to itself the right to maintain order and to 
prevent violent and involuntary transfers of property by punish- 
ing offenders ; and that if he is detected he will be punished 
by such process and in such ways as the State may provide. 



diBtinct 
from 
the phy* 
sical 
sanction 
or force. 



The moral 
sanction. 



Thereli- 



l] COMPLEXITY OP MODERN STATE* 9 

The abflolate sia^ngth of the State is a necessary conception 
as the foundation of any jnrispradence which is not a merely 
specolative and ideal arrangement of roles of conduct, bat the 
complexity of its stractore is the matter of difficulty to the 
etodent of constitutional law. 

The king, who decides quarrels, declares customs, and leads The 
his people in war, ceases after a while to discharge these duties ^^utf^ 
as they become more elaborate and cover a wider surface. The ^•^nctioM. 
oommimiiy extends by absorbing others in conquest or by a 
natural process of growth, and can no longer assemble in its 
entirety to express its assent or dissent on matters of common 
interest. The various duties of the king pass into the hands 
of ministers, sometimes with the result, noticeable in our 
constitution, that he comes to be regarded as incapable of 
discharging these duties for himself. Thus we find in our 
own country that though every act in the State is in theory 
the act of the Queen or of the Queen in Council, the executive 
power of the Crown, except as exercised through its ministers, 
has shrunk to an almost nominal power of appointing and 
dismissing them. 

And as the Crown has lost the power of independent action 
in matters administrative, so it has lost independence and 
initiative in legislation. First, the community demands to be 
represented when money is granted, to assent to the amount 
and incidence of the tax; then the representatives claim to 
state grievances, departures from custom or need of change 
before they grant the tax ; then, instead of leaving it to the 
king and his council to make and promulgate the required 
law, the representatives undertake to frame and settle the 
law. The king's legislative power sinks to a formal right to 
assent or dissent from a law submitted to him, and this again 
to a merely formal expression of assent. Though statutes are 
nominally enacted * by the Queen's most excellent Majesty,' 
and the Lords and Commons do but advise and consent and 
give their authority thereto, the legislative power of the Crown 
has shrank to a shadowy veto. 



10 CONSTITUTIONAL LAW IN JUKISPRUDBNCE. [l. 

From what has been said it will appear that the complexity 

of a modem State, and in particulax the complexity of modem 

English institutions, gives enough woik to the constitutional 

lawyer if he is to disentangle and set out in their Yarious 

Matters to relations the institutions of his country. It is the more 

^^^^' important to keep his province clear of other fields of study 

from Con- which have been touched upon in what has just been said. 

stitutional , ^ _ 

Law : The history of the conception of the State, its sphere of duty, 
the best possible disposition of forces in it, the mode in which 
they are or have been disposed at different times, — all these 
topics are more or less susceptible of confusion with the topic 
of constitutional law. 

Let us try to sever them. 

(a) There is the growth and development of the State in its 

Legal An- mdimentary forms, the mode in which Law parts company with 

tiqnitiee; q^qj^ g^^^ religion, and becomes specialised as a code of 

conduct enforceable by a central power within the cooununity 

— ^this is the department of historical jurisprudence, and is 

matter for the student of legal antiquities. 

Political (P) The determination of the rules which should be enforeed 

^^^ by the State, as opposed to such as should be left to the 

limits of moralist and the priest or preacher, is matter for the political 

State inteF" .••••« 

ference; economist and the student of political science : it is for them 
to discuss and settle the limits of State interference. 

(y) But when once it is determined what rales of conduct 
the State shall enforee, the business of the jurist and of the 
legislator begins. For when the State enforces acts and fi>r- 
beaiances, it at once creates rights ; the analysis and anange- 

Jurispra- ment of these rights is the business of the jurist. 

^^' Moreover, it is one thing to say that certain acts and 

forbearances shall be made obligatory, and another thing to 

determine the mode in which they shall be so made, in what 

form, and with what sanctions for disobedience. The theory 

the theory of punishment (using the term punishment as including all 

tion^^^**^ forms of penalty or remedy for rights infringed), and the 
business of making laws, make up the province of the l^fislator. 



I.] TOPICS AKIN TO CONSTITUTIONAL LAW. 11 

(5) There yet remains for consideration the actual stracture 
of the State. We may ask, after determining the due 
limits of State interference and the objects of State control, 
how the forces of the community may best be disposed with Political 
a view to the attainment of these objects ; and this is a part ^^^^ ' 
of the business of the student of political science ^ 

Or, we may ask how the forces of the community have been Constitu- 
disposed in the past, noting the displacement and change of ^^. 
balance from time to time; and this is the business of the 
constitutional historian. 

Or, lastly, we may consider how the forces of the community Constitu- 
are disposed here and now; what are the legal rights and ^' 

duties of the various parts of the sovereign body against one 
another and against the community at large; and how the 
whole works together. If in our own constitution we find 
that law and custom diverge, we must note first what is the 
law, and then how it has been overgrown by custom ; and in 
so doing we shall do the duty of the constitutional lawyer, 
and stray as little as need be into the domain of other studies. 

' I may seem to haye suggested under three different headings three 
matters, idl of 'which might be included within the term ' political science.* 
It is not my boainess to find a terminology for the political philosopher, but 
hia studies would seem to indude three distinct things : the ascertainment of 
the limits of State Interference, so that he may know what the State should 
undertake ; the theory of Legislation, so that he may know how the State should 
•at about what it undertakes ; and the Analysis and Comparison of Constitu- 
feiona, so that he may know how the State may be best constructed and political 
forces best disposed with a yiew to the work of the State being done. 



CHAPTER IL 



Historical Outline. 



Object of 
an his- 
torioal 
outline. 



Character 
of Saxon 
polity : 



The great difficulty which presses on the student of the 
English constitution, regarded as a set of legal roles, is that 
he can never dissociate himself from history. There is hardly 
a role which has not a long past, or which can be understood 
without some consideration of the circumstances under which 
it first came into being. And yet, if we are ever to under- 
stand the constitution as it is, we mnst needs limit its historical 
aspect to the narrowest dimensions. In order that we may be 
able to do this, I propose at the ontset to note the various 
phases through which our constitution has passed, so that it 
may be possible to fit the rules into their historical origin as 
each comes to be dealt with. A historical outline will clear the 
ground and enable me to confine the rest of the book, as far as 
possible, to the law and custom of the constitution as it now is. 

TAe Saxon Constitution, 

• 

The Anglo-Saxon or early English constitution was of the 
ordinary type of what Mr. Bagehot calls ' that common polity 
or germ of polity which we find in all the rude nations which 
have attained civilisation — a consultative and tentative abso- 
lutism/ There was a king the chosen representative of the race, 
their leader in war and their judge in the last resort, an assembly 
of the wise, and the concourse of the people. But whatever 
may have beep the rights of the popular assembly or its position 
in the smaller kingdoms of the early Saxon times, it seems 



HISTOBICAL OUTLINE. 13 

dear that when England became a united kingdom its govern- 
ment was condncted by king and witan. K the king had a 
strong will, and a good capacity for business, he ruled the 
witan, if not, the witan was the prevailing power in the state. 
But the Anglo-Saxon kingdom had an element of instability, its weak- 
Perhaps from the mode in which the country was gradually 
acquired by the various conquering tribes, and from the gradual 
amalgamation of diverse kingdoms into one, the England 
of Saxon times was wanting in a sense of national unity. 
' The cohesion of the nation/ says Dr. Stubbs, ' was greatest Const. 
in the lowest ranges. Family, township, hundred, county held ^n/ 
together when ealdorman was struggling with ealdorman, and 
the king was left in isolated dignity.' 

The Norman Administration. 

The local organisation was strong, and formed the substan- Saxon 
tial contribution of the Anglo-Saxon polity to our constitu- Sent and 
tional gprowth. When the Norman kings came over, bringing ^^^. 
with them the formulated feudalism of the continent, the ^^^ 
strength of local custom was a powerful assistance to them 
in so organising the country as to raise up a central and solid 
government, as against the efforts of the barons to break up the 
kingdom into a number of small principalities. They bound the 
people to themselves by reserving to the king the allegiance 
of every landowner and excepting it from the fealty which he 
swore to his lord : they used the local customs and institutions 
as a machinery for the administration of justice and the assess- 
ment and collection of revenue, and they worked this machinery 
firom a strong central government over which they watched 
with personal and incessant care. 

The Norman central and administrative system was brought 
into contact with Saxon local and representative institutions 
by the sessions of the royal justices in the shire moot. At 
these sessions offenders were presented to the king's justices 
by the twelve lawful men of the hundred, and the aid or tallage 
imposed by the king in council was assessed and collected. 



14 HISTORICAL OUTLINE. |TI. 

So long as taxation fell upon land only, the liability of the tax- 
payer was settled by the sheriff, the justice, or the declaration 
Stubbt, i. of the tenant in chief: bnt personal property, when under 
^^^' Henry II it came to be taxed, required a closer system of assess- 

Growih of ment. Thus, for the collection of the Saladin Tithe represen- 
tT^I^^ tative men of each township were chosen to determine the 
^th^^^ liabilities of the tax-payers, and here we get the beginning of 
tion. the connection between taxation and representation. Shortly, 

one may state the whole history of the process which now 
begins. First, the representatives calculate the amount due 
from each individual of a tax fixed by the crown ; next, they 
determine the total amount which shall be granted to the 
crown ; finally, they determine not merely the amount which 
the crown is to receive, but the way in which the crown shall 
spend it. 

But this is at present fieur off. The kings of the twelfth 
century judged and taxed, and commanded their feudal levies 
in war, and issued edicts declaratory of custom or relating to 
changes of administration. Bnt the system of administration 
was largely based on local representation for purposes of taxa- 
tion and judicial procedure, and so we get a connection of the 
local and central power, which paved the way for Parliamentary 
institutions and for the share in the government of the country 
which was given to all classes by the constitution of Edward I. 
The The Great Charter is partly a declaration of rights, partly 

a treaty between crown and people : it contains a statement 
of the legal limits of the power of the crown in two matters 
of paramount importance. It put on record first the right at 
any rate of all tenants in chiefs personally or by their representa- 
tives, to be parties to the grant of any scutage or aid other 
than the three customary aids ; and next the right of every 
free man to the free course of justice, ' the legal judgment of 
his peers or the law of the land,' That representation is a 
condition precedent to taxation, and that the law is the same 
for all, may be regarded as the cardinal principles of the 
charter. 



n.] BEGINNINQS OF PAELIAMEKT. 15 

Tie Cofistituiian tf Edward 7. 

Edward I gave to our constitution the form which, with 
many changes in spirit and manj more in detail, it has 
retained to the present day. The executive is the Crown in 
Council, the king acting with the advice of the wise men and 
magnates of the realm. The representative body, which at ParlU- 
first only assents to taxation and afterwards makes laws, con- conBtitu- 
sists of the clergy, the baronage, and the commons, the three *^^' 
estates of the realm. The baronage come in response to a 
summons addressed by writ to each individually ; the clergy 
are included in a like writ addressed to each bishop ; the 
commons are summoned by a writ addressed to the sherijQT of 
each county, commanding the election of two knights for each 
shire, two citizens for each city, two burgesses for each borough. 
Hie machinery of the county court, which had already been used 
for the choice of persons who should assess the taxation levied 
by the Crown, is now used for the choice of persons to repre- 
sent the shire, and for the confirmation of the choice of their 
representatives by the towns. And these representatives, the 
choice of whom is notified from the sheriff in the County 
Court to the Crown, meet in Parliament 'to enact such Stabbs, 
things as shall of our common council be ordained.' The ^§5, ' 
Crown in Parliament begins to be distinguishable from the 
Crown in Council, but it took a long time to establish a clear 
demarcation of the functions of legislature and executive, a 
still longer time to enable the two, when once their fimctions 
-were distinguished, to work harmoniously together. 

The Commons as a Political Power, 

There was at first no clear recognition of the right of the Voice of 
commons to a voice in legislation, for the king in council had u^^Qg i,^' 
been wont to declare customs and make administrative l^P*!******** 
changes, and sometimes continued to do so with the concurrence 
of the Magnates only, and without waiting for the assent of 
the Commons. Such was the case with the Statute Quia 
Xmptores, passed iiistawtia magnatum. If they wanted new 



16 HISTORICAL OUTLINE. [iL 

laws the Commons did not frame them, bat asked for them ; 
the Crown in Council legislated on petition of the Commons, 
in adminuh Nor were the Conmions always willing to recognize their 
position as critics if not advisers of the Crown and its 
Ministers. When their opinion was asked on matters of 
executive government they were reluctant to give it, lest 
their advice should lead to expense for which thej might be 
held responsible. 

But the strength of the Commons lay in this, that when 
once the Crown had acknowledged its inability to lay taxes on 
the people without their consent, that consent could only be 
obtained through their representatives in Parliament; and 
further, in days when there was no press, nor means of getting 
at public opinion by organised demonstrations, it was only 
through the assemblage of the Commons that the king could 
ascertain the feeling of the country. And though the 
Commons might be reluctant to express opinions which would 
compromise them in the matter of taxation, yet a capable 
king would learn without much difficulty whether the country 
was with him or not, and a wise king would not act in grave 
matters unless he knew that the country was at his back. 

So the Commons became necessary to the Crown : they were 
also necessary to the Baronage, for the Barons were frequently 
in an attitude of resistance to the Crown ; it was upoa them 
that feudal liabilities lay heaviest, and it was important to 
them to have the Commons on their side. In the great Con- 
stitutional struggles of the middle ages, which ended in the 
acknowledgment by the Crown of the right of Parliament to 
grant supply, we find the Barons leading and the Commons 
following their lead. 

But though money could only be got through the Commons, 
and information of the state of public feeling could hardly be 
got elsewhere, yet it was not for a long time that they could 
exercise any substantial influence on the action of the, execu- 
tive, it was even sometime before they acquired a hold upon 
legislation. 



II.] THE COMMONS IN THE MIDDLE AGES. 17 

The Commons and the Executive. 

For in their relations to the executive the criticism of the 
Commons was occasional, their control remote. They could 
denounce, but they could not denounce in time or complain 
before the mischief was done. If grants of money had been inde- 
required at more regular intervals, or could have been appro- ^th^^^* 
priated more specifically to the purpose for which they had ««5^*ive. 
been asked, the Commons might at any time have stayed the 
hand of the executive by tightening the purse strings. But 
the Crown had an hereditary revenue from various sources 
which satisfied many of the needs of government. If the 
king wanted more, he asked for and obtained a grant of a 
tenth or a fifteenth on real or personal property. No means 
existed of assigning portions of the grant to particular services, 
or indeed of providing that the king should not spend the 
entire subsidy on purposes quite different from those for 
which it was asked. So when their grant was made the 
virtue had gone out of the Commons, they could exercise no 
control over policy till money was wanted again. Their efforts Checks de- 
to keep a hold on the king's ministers show that they knew commons. 
their weakness in this respect. The oath of office and the 
practice of impeachment were attempts to impose upon the 
servants of the Crown a sense of duty by fear of more or 
leas reinote contingencies. The demand sometimes made that Stubbs, ii. 
the officers of state should not be chosen by the Crown but ^^^* 
should be elected by the Commons is a curious anticipation o£ 
modem practice. Only the Commons desired in the middle 
ag^ to do directly and formally what in the modem consti- 
tution they do indirectly. The mediaeval Parliament wanted 
to be able to elect for the Crown the minister of its choice. 
The modem Parliament is content with the power of making 
it impossible for the Crown to employ others than those whom 
Parliament favours for the time. 



18 



HISTORICAL OUTLINE. 



[IT. 



Tie Commons and LegUlation, 

The control which the Commons exercised over legislation 
was acquired two hundred years sooner than its control over 
the executive. But it was not acquired without a struggle. 

Bj the end of the thirteenth centuiy they had secured that 

no tax should be imposed which they had not granted: before 

the middle of the fourteenth it was enacted that no lawshonld 

be made to which they had not agreed : when asked for money 

they could claim that grievances should precede supply : for 

such grievances as needed legislative redress they had to be 

Parliamen- coDt-ent with the king's promise of such redress. When par- 

^^^' liament had dispersed, the statute required was drafted and 

legislation, engrossed in the statute roll, or an ordinance issued to the 

same effect. But the Commons had no opportunity of seeing 

whether their wishes were really carried out, or if carried 

out were not rendered liable to be defeated by saving clanses 

and the reservation of a dispensing power to the Crown. 

The process of legislation, as might be expected, took mnch 
less time to acquire its modem aspect than did the connec- 
tion of the executive and the leg^lature. It was not till after 
the Revolution that party government began to grow up, 
and the relation of ministers to Parliament assumed some- 
thing of its present form. But by the end of the fifteenth 
century Statutes had assumed the form which they still retain, 
and as early as the reign of Henry the Sixth the framin^^ 
of laws was undertaken and conducted by the HouseB, and 
the king had ceased to do more than express a fonnal 
acceptance or rejection of the measure submitted to him. 

The mediaeval Parliament had thus acquired a close and 
effective control over legislation, while its control over the 
action of the Crown, or of the Ministers of the Crown, remained 
uncertain and at best intermittent. But it must not therefore 
be supposed that the king was free to do as he would in matterB 
of administration and of external policy, subject only to ihe 
liability of a reference to Parliament when money was needed. 



?a 



nJ THE FEUDAL KING AND COUNCIL. 19 

Tie Feudal King. 

Feudal royalty itself did not possess the saeredness which 
came to be attached to the kingly office in the seyenteenth 
centmy. The liabilities of ^legiance might be renomiced as Contract- 
they were in the case of Edward II, or the right to allegiance J^ ^'^- 
resigned as it was by Richard II. Feudalism was based upon ^««<J*l"»a. 
contract, and a hopeless failure in performance of his part 
by the king was held to discharge his subjects from their 
liabilities. 

But there was a closer and more effective check upon the The Conn- 
action of the king than this last appeal to the contractual or up<m thT 
quasi-contractual relation of sovereign and subject. The execu- ^^^^^ 
tive was not the king but the king in council, and the council 
were the great officers of state. Although it might be difficult 
for Parliament to keep an adequate control over the king's 
choice of ministers, or over the action of the ministers whom 
he chose, such ministers were themselves powerful represen- 
tatives of two estates of the realm, the baronage and the clergy. 
The nobles and bishops who, for the most part, composed the 
Council could influence the royal policy in other ways than 
by their knowledge of the business of state. The nobles by 
their great estates and local influence could treat with the 
king on an independent footing ; the bishops could speak for 
the clergy, who were taxed separately from the laity, and often 
on a larger scale. The Council therefore wfls a strong check 
on the power of the Crown, unless the king was a man of 
exceptional vigour and capacity, who could seize a policy in 
which he would have the nation at his back and carry it out 
with a skill and firmness which would secure the obedience of 
the CounciL Nor did the Council show any disinclination to 
control the action of the Crown in all important matters. 
The history of the royal seals, the Great Seal, the Privy 
Seal and the Privy Signet, shows how the instraments of the 
king's anthentis acts were one by one entrusted to a respon- 
sible officer of state and placed outside the royal control, 

c % 



Tudor 
power 



20 HISTOBICAL OUTLINE. [ll. 

In fact although the king was an essential part of the 
mechanism of state, though he enacted laws in Parliament, 
issued writs, granted patents, commanded armies, the part 
he played might be real or formal as the king might be 
strong or weak, the council vigorous or disunited, the par- 
liament interested or apathetic. And the possible checks 
upon his power throughout the middle ages were such as 
to reduce it at times to little but a form. 

The Reformation and the Tudor Monarchy, 

Soujtsee of Under the Tudor Monarchy all this was changed. The 
Wars of the Roses left the baronage reduced alike in numbers 
and in power, the commons exhausted and anxious only for 
a rule strong enough to give them peace, the crown rich 
with the forfeited lands of those barons who had taken the 
wrong side in the dynastic quarrels of York and Lancaster. 
The church was the only great power in the state which 
could cope with the crown ; and the reform of the church, 
whether it was to take place from without or from within, 
was now imminent. 
Politicftl The Reformation in England was the result of many con- 
the Refor- flirting currents of interest. Among these may be numbered 
mation. the attitude of the clergy themselves, who had been heavily 
taxed by Rome and were not unwilling to become a national 
church with the king at their head. Once severed from 
Rome the hand of reform fell hard upon them. By the 
dissolution of the monasteries the church lost much besides 
w'ealth; it lost social influence, for the monasteries were 
the great educational centres and the great dispensers of 
charitable relief; it lost political influence when the mitred 
abbots no longer formed, as they had previously formed, a 
large number of the House of Lords. 

Thus all things combined to enhance the power of the 
crown. The destruction of the baronage not only freed the 
king from a serious check upon his independent action, bat 
enabled him to fill the great offices of state with new men. 



aag 



n.] THE TUDOBS AND STUARTS. 21 

The council now consisted of but few greckt nobles in propor- 
tion to tbe officials on their promotion ; it was no longer united 
but split into departments ; from being a check upon royal 
power, it became a formidable instrument in the hands of the 
crown. The breach with Bome placed the king at the head 
of the national church, and the spoils of the monasteries gave 
him an immense accession of wealth. 

The two great Tudor monarchs, Henry VIII and Eliza- Mainte- 
beth, showed their statesmanship in nothing more con- ^^^tu- 
spicuously than in their acceptance of all the forms of the J**^"*^, 
constitution. When Henry VIII obtained for his Proclama- theXudon. 
tions the force of law, and was permitted to devise the 
crown by will, these extraordinary powers were in each 
case conferred by Parliament and in statutory form. When 
Elizabeth desired to control the growing interest of the 
House of Commons in public affairs she packed the House 
with subservient members, representing small boroughs upon 
which she had conferred the franchise in order that they 
might return persons who would be under the influence of 
the court or its ministers. The Tudors were content with the 
substance of power, and left to Parliament everything but the 
reality of control over legislation and policy. 

Tie uiues between the Stuarts and Parliament. 

But this expedient for harmonising the wishes of the Disregard 
House of Commons with the action of the executive is of^ ^j^ 
itfielf an indication that a new struggle was beginning on St««rt8- 
the old ground. The Commons had begun to demand a voice 
in the general policy of the country, and to criticise the 
action of the executive in modem fashion. And James and 
Charles chafed at constitutional forms, and were incapable 
of a generous acceptance of a policy they disliked. 

Tbe practical issue between the Crown and the Commons Shipmoney 
came to this, that the Crown claimed to tax without consent g^^^^ 
of Parliament, and to administer justice without the forms of c^^«™^>e'- 
law. Both parties appealed to the letter of old statutes, and 



22 



HISTORICAL OUTLINE. CH. 



neither seemed to see that with the change of times, and after 
the long lapse of political interest under the Tudors, the 
mediaeval constitution needed to be re-stated, .or even recast, 
if the Commons were to resume their old place in political 

life. 
1628. The Petition of Bight was the first attempt to restate the 
rules of constitutional liberty laid down in the Great Charter, 
but in defiance of its provisions Charles tried to dispense with 
Parliament in matters of taxation, and with the Courts of 
Law in matters of criminal justice. The Star Chamber, the 
judicial aspect of the Privy Council, had once been a useful 
means of bringing great offenders within the reach of the law 
by the strong arm of the executive. It now became an in- 
strument of political and ecclesiastical tyranny, enabling the 
Ifing to dispense with the forms of law where they were 
inconvenient, and to get the course of criminal justice into 
his hands. 

Want of money brought the king back to Parliament at 
last, and the first acts of the Long Parliament were to sweep 
away the criminal jurisdiction of the Privy Council, and to 
close every avenue against the raising of money by the Crown 
without the consent of the Commons. But the executive and 
the representative parts of the constitution had by this time 
drifted too far apart, and the monarchical policy of the first 
Stuarts ended in the catastrophe of the Civil War and the 
premature reforms of the Commonwealth. 

Relations of Crown and Parliament^ 1660-1688. 

The Bestoration did not give back what the Long Parlia- 
ment had taken away — the criminal jurisdiction of the Privy 
Council ; nor did it revive what the Long Parliament had 
set at rest, the right of the Crown to raise money, whether 
by direct or by indirect taxation, without Parliamentaiy 
grant. The executive was weakened for the purposes of 
conflict with the legislature, but nothing was done to bring 
the ministers of the Crown into closer relation with the power 



TI.] CHABLES II. AND THB COMMONS. 23 

which was fast becoming paramoiint in the constitution, the 
House of Commons. 

In the reig^ of the last two Stuarts one may summarise 
the relations of Parliament and the Crown somewhat as 
follows. 

The king could set up no claim to raise money without Bevenoes 
consent of Parliament : he possessed a revenue roughly cal- Grown in 
cnlated at i£*i ,250,000 a year arising from the crown-lands. '^^' 
and the proceeds of certain duties ; he employed such ministers 
as he pleased, subject to the risk of their being impeached by 
the House of Commons if they and the House came to hope- 
less yariance ; and he conducted the business of government 
in concert with a small body of the Privy Council, consisting 
of such persons as he might think likely to promote the 
despatch or enliven the progress of business. Any increase 
in the productive power of the sources of the revenue went 
to the benefit of the Crown, which might to that extent 
become independent of Parliament. Any increase in the Appropri- 
liabilities of government beyond the ordinary revenue had to supplies. 
be met by a subsidy, or extraordinaiy g^ant, from the Com- 
mons, and such grants were for the first time in the reign 
of Charles II appropriated to the specific purposes for which 
they were made ; that is to say, their use was limited to such 
purposes, and the money granted was not issued except under 
precautions that it should be so used. The Commons drew 
doeer their control upon the action of the executive, but the 
periodical catastrophes of Charles the Second's reign— -the 
exile of Clarendon, the impeachment of Danby — show how 
easy it was for a minister and a House of Commons to drift 
00 fiur apart that no means were left for settling their disputes 
except recourse to violent measures. 

The abortive Privy Council scheme of Sir William Temple Attempt 
in 1679 showed some consciousness of the risk arising from j^^j^ „. 
the slii?ht correspondence between Ministers and the Com- o<^ti^e 

° * ^ , andleg:i8- 

mons. The attempt to create an executive which should latnre. 
represent all classes and opinions could hardly have been 



r 



24 HISTOBICAL OUTLINE. [n. 

expected to succeed, bat it was something that the consti- 
tutional problem should have been recognized though the 
solution was inadequate. 
Thedifl- Taxation in Parliament and the free administration of 
powCT^ justice had been secured by the Long Parliament; the last 
of the Stuarts revived an earlier claim of the Crown to 
independent legislation. The final struggle arose on the 
attempt of James II to annul, of his own authority, statutes 
which had been thought essential to the security of the 
Protestant religion. The issue between the first Stuart 
and his subjects turned on the right of the king to tax 
without Parliament and judge without the Law Courts. The 
issue between the last Stuart and his subjects turned on the 
king's right to suspend the law at his pleasure and by his 
individual act. The ofier of the crown to William and Mary, 
their acceptance of it, and the codification in the Bill of 
Rights of the limitations on the royal prerogative, mark the 
beginning of the modem Constitution. 

TAe Modern Comtiiuiion. 

1688. But the Bill of Rights is more than a summary of con- 

of RiffhtB. ^it^^oi^&l Tule& ; it practically settles a number of disputed 
how far a questions of principle. In opposition to the doctrine that 

codo. 

the crown was a piece of real property which could never be 
without an owner, it declares the throne vacant. In opposi- 
tion to the doctrine that the succession to the throne was 
a matter of divine indefeasible hereditary right, it regulates 
that succession. In opposition to the doctrine of passive 
obedience, it affixes conditions to the tenure of the crown. 

The Bill of Rights is perhaps the nearest approach to a 
constitutional code which we possess, but it does not profess 
to be a written constitution. It merely states the points which 
had been from time to time in issue between the Crown and 
its subjects since the reign of Edward I, and on all points it 
declares in favour of the nation and against the Crown. 

This summary of constitutional rules, setting at rest matters 



II.] THE MODERK CONSTITUTION. 25 

which had long been a source of difference, represents the legal Altered 

result of the Eevolution. The process by which the crown ^Royalty. 

was offered to William and Mary by the representatives of 

the estates of the realm is evidence of an altered conception 

of royalty which has practically determined the development 

of constitutional usage since 1688. It is worth considering 

how this conception of royalty has gradually been arrived at. 

Feudalism, which linked political power with the holding of Mediaeval 
land, had found the king a tribal chief, had made him the ^' 
ultimate landlord of every man, and had turned sovereignty 
into a piece of real property, the rights to which were 
reg^ated by the feudal land-law. The practice of Com- 
mendation, where fealty was to be rendered on one side and 
protection on the other, gave to feudalism that element of 
personal loyalty which made treason the unpardonable sin of 
the middle ages. At the head of the feudal hierarchy, the 
lord of kings was the Emperor, but his shadowy lordship 
lost all practical meaning when the kingdoms of Europe 
grew definite and united in themselves ; and the Reforma- 
tion, which broke up the unity of Christendom, destroyed 
for ever the feudal conception of society, secular and spiritual, 
tending upwards to the Emperor and the Pope. And as 
the dependence of the king upon an earthly power was 
thus exploded, kingship obtained a higher place than it had 
occupied as a link in the feudal chain. For the connection Divine 
of sovereignty with property was still assumed, and the per- "^ 
sonal allegiance of feudalism remained, and when men sought 
for some theory of political duty they found it in the con- 
ception of Divine Bight. The king held the kingpdom as 
property, his subjects owed him their fealty, and his tenure 
was of God. 

And this theory of Divine Bight grew into definite shape in Kepresen- 
opposition to a new conception of kingship. "When, after the royalty. 
Beformation and with the rise of Puritanism, men began to 
regard the king rather as the official exponent of the wishes 
and aims of his people, the opponents of this view sought in 



26 HISTORICAL OUTLINE. [iL 

the Divine right of kings a basis of sovereignty and a theoiy 
of political duty which seemed to them surer than the con- 
venience of a nation, or the need of having some outward 
embodiment of the State. 

The act of the Convention Parliament which gave the 
crown to William and Mary was the recognition of the official 
and representative duties of the Crown in England. Whether, 
with the utilitarians, we say that government exists for the 
common good, or with Locke, that it exists for the purpose 
of securing to us natural rights, or with Hobbes, that it 
exists for the restraint of lawlessness and the protection of us 
from our own inclinations to rapine and revenge, we come to 
Bdsult of the sam^ conclusion — ^that the State exists for our advantage, 

of royalty. ^^^ ^^^ ^^^^ ^ & P&^ of the State, that he, like the rest of 
the State machinery, is not there of right except in so far as 
he fulfils his functions. 

This practical view of the relations of the Crown and people 
had immediate effects. 
TheMu- The king had been the leader of the armed force of the 
tiny Act. jii^^Jqj^ ^ ^ militia. The Bill of Bights declared the main- 
tenance of a standing army in time of peace without consent 
of Parliament to be contrary to law. Apart from this general 
proposition the maintenance of discipline necessitates the 
power of inflicting punishments in a more summary manner 
than would be possible in the ordinary course of law. The 
Commons were determined that such a power should not pass 
out of their control, and the Mutiny Act, by which the exist- 
ence of a standing army is legalised and its discipline pro- 
vided for, is never passed for more than a year at a tinie. 
The appro- Again, the Crown had conducted the business of government 
BurolieS.*^ on the resources supplied by the proceeds of crown lands 
and of taxes settled on the king for life. If the revenue 
was in excess of the needs of government the king could do 
as he liked with the balance, if it was deficient the king asked 
the Commons to make good the deficiency. But it was left 
to the king to conduct the entire financial business of state 



nJ THE MODERN CONSTITUTION. 27 

from year to year. After the Bevolution this was changed. 
The king was not entrusted with the payment of all the 
charges of goveniment; he was placed upon an allowance 
called the Civil List, calculated to meet the cost of the royal 
household and of the civil departments. The House of 
Commons took over the naval and militaiy expenditure, and 
annually voted and paid the sums required. They thereby 
acquired a power of constantly reviewing the conduct of the 
Executive alien to the idea of the relations of Crown and 
Parliament entertained by the Stuarts and their supporters. 

But most important of all was the new relation in which Depend- 
the ministers of the Crown stood towards Parliament. With Midaten 
the increased control which the House of Commons acquired ^^ I**rlia- 

^ ment. 

over the business of government, came the necessity that the 
king's ministers should be able to work in harmony with a 
miyoiity of the House. The king might choose his servants, 
but the House of Commons might make it difficult, if not 
impossible, for them to carry on the business of government. 

Cabinet and Party Government. 

And this newly acquired power of the House of Commons The 
did more than limit the king's choice of ministers ; it at once ^*^^^®^* 
brought to a close the practice of working the executive by the 
Crown in Council. The Privy Council was too large a body, 
and of too various political opinions, to act together or to guide 
its action by the wishes of a Parliamentary majority. 

Already a committee within the Council had come to trans- i. A com- 
act the business of the country, and this had arisen from the heads of 
dislike of Charles II to the formaUties of a full meeting of ^^' 
the Council, and of William III to the communication of his 
policy to more than a few trusted statesmen. 

It remained that this committee of the Council, made up of a. United 
the chie& of the various departments of government, should j^^ ^^ 
consist of persons of the same way of thinking in politics, and poptical 
that way in accordance with the opinion, for the time, of the ^e majo- 
majority in the House of Commons. The necessity for this commons. 



28 HISTORICAL OUTLINE. [n. 

became clear so soon as the increase in the power of the 
Commons became realised. 

Sunderland taught it to William III, and as early as the 
beginning of the last century cabinet and party government 
existed in a rudimentary form. That is to say, the policy of 
the country was not determined by the Crown with the whole 
of the Privy Council, but with a limited number consisting for 
the most part of the heads of departments ; and this limited 
number were men of identical opinions on the chief matters 
of political interest, and their opinions were the same as those 
of the majority of the House of Commons. 
3. Not Thus the House of Commons obtained the control which 

severed mediaeval Parliaments had soqght in vain over the selection 
House of of the executive, and the policy of the country. It could, by 
a process of indirect election, determine whom the Crown 
should employ for the conduct of affairs of state. It nearly 
sacrificed this power to a fear lest the presence in its body of 
ministers and placemen should affect its independence. A 
la & 13 clause in the Act of Settlement excluded from the House of 
Commons all who held offices or places of profit under the 
Crown. Happily this clause was repealed before it came into 
operation ; and the parties in the House of Commons have 
gradually acquired the power of indicating, by a process 
which is somewhat indefinable in its action, though perfectly 
clear in its results, the ministers to whom they are respectively 
willing that the conduct of affairs should be entrusted. 

There were two principles which needed to be established 
before Cabinet government, as we understand it, came into 
effect. The first was that the Cabinet should be wholly severed 

Disuse , , 

of royal from the Council, except in so far as the members of the Cabinet 
presence. ^.^ ^Iso members of the Council. Throughout the reign of Anne 
the policy of the country was settled at small meetings of the 
Council, attended by the chief ministers of departments and 
presided over by the Queen. The disuse of the royal presence 
at these meetings dates from the accession of George I, who 
probably found it disagreeable to attend discussions which he 



Will. III. 
c. a. s. 3. 



9 

II.] ' CABINET GOVEKNMENT. 29 

could not understand. But the absence of the King led to a 
complete alteration in the character of the meeting. It ceased 
to be, in any formal sense, a meeting of the Council ; it became 
a meeting of leaders of the party in power. It ceased to have 
any known legal position, and became what it is now, a meeting 
of gentlemen of common political interests, who, because they 
are eminent members of one or other House of Parliament or 
heads of important departments, find it convenient to discuss 
together the affidrs of state. It is no longer the Queen, but 
the Prime Minister, a personage as unknown to the law as is 
the Cabinet, who convenes and presides over this assemblage 
of ministers. 

The second, and this was of slow growth, was the Joint 
modem theory of the joint responsibility of ministers. Ifwiityof 
a body of ministers stand or fall together, the influence ©f ™*'*"*®"* 
the Crown upon the working of government is obviously 
much diminished, and that of the Commons is increased. , 
If the Crown should disapprove of the conduct of a parti- 
cular department it cannot now, as it frequently could and 
did during the last century, dismiss the individual minister 
of whose conduct it disapproves without at once losing the 
services of all the rest. It has to deal with a body of men who 
stand or fall together, because they represent common interests 
and the opinions of a party. They have become ministei*s 
because a majority of the House of Commons was willing to 
support their policy, and was not willing to support any other ; 
they are collectively the nominees of that majority, and 
though they have been summoned to hold office by the 
Crown, it is to the majority of the House of Commons, and 
not to the will of the Crown, that they look as the real 
source of their power. The dismissal of one is an attack 
upon the policy which all represent. 

TAe United Kingdom and its Dependencies. 

The constitution of Parliament, and of the various depart- The AotB 
ments of government, the relations of the Crown to its 



30 HISTORICAL OUTLIUB. 

ministeTB, and of the Crown and its ministers to Parliament, 
do not exhaust the topics of constitutional law in histoiy or 
in fact. So £Eur I have traced the development of the Con- 
stitution in England alone. It has to be borne in mind that 
the Acts of Union with Scotland and Ireland were treaties 
by which two independent Parliaments were absorbed into 
a third upon certain terms as to representation in the two 
Houses ; treaties by which two States, one enjoying complete 
independence, the other a legislative independence of Eng- 
land, were formed into a United Kingdom of Great Britain 
and Ireland. 
ConBtitu- ^^ ^jjjg United Ein&rdom, the terms of whose union have 
oolomes to be studied by the constitutional lawyer, has accumulated 
connection around itself a number of dependencies, some the result of 
UnSiS* conquest, some of colonisation, very variously constituted in 
Kingdom, themselves and standing in various relations to the central 
government. Our work is not done until we have made out the 
nature of the bonds which connect England with Scotland 
and Ireland, and the United Kingdom with the varions 
parts of the Empire which lie scattered over the habitable 
surface of the earth. 



ence. 



CHAPTER III. 

sons CHARACTEBISTICS OF THE ENGLISH CONSTITUTIOK. 

Ths brief survey which I have made of the leading features Onr ooiuti- 
of onr eonstitntioii may serve at least to bring out one re- graduaf 
markable characteristic of the topics with which we have to *^P*»*ioii 

. . . ^* rulei to 

deal. A constitution which b^^ with the rude organisation oonveni- 
of a group of settlers in a hostile country has been adapted 
not only to the wants of a highly civilised race, but to the 
government of a vast empire, and has been bo adapted by an 
insensible process of change, without any attempt to recast it 
as a whole, or to map it out in a written form. 

It follows that there are many things in our constitution 
for which it is hard to account. We find one practice prevail- 
ing at one time, and quite a different practice, in the same 
matter, at another; and it is sometimes difficult, if not 
impossible, to indicate the moment at which the change 
occotred. For changes have most often been unconscious 
adaptations of practice to convenience ; where changes have 
been deliberate they have never been comprehensive; they 
have never dealt with more than the matter which needed 
change. 

It follows then that our constitution is a somewhat rambliilg 
structure, and that, like a house which many successive owners 
have altered just so far as suited their wants at the time of 
iheir possession^ it bears the marks of many hands, and is 
convenient rather than symmetricaL 



32 CHAEACTERISTICS OF ENGLISH CONSTITUTION, [ill. 

Henoe One result of these piecemeal changes in our constitution 

m^ce^ is the divergence, in many important matters, of law and 
diverge custom, of theory and practice. We are constantly embar- 
rassed by finding power vested by law in hands which never 
exercise it in fact, and power exercised in fact by persons 
unknown to the law. A student who rose from the perusal 
of the latest edition of Stephen s ' Commentaries ' to study 
the working of our institutions at the present day, would 
wonder what had become of the prerogative of the Crown, 
and who were meant by the Prime Minister and the Cabinet. 
It is necessary, therefore, before dealing with the law and 
custom of the Constitution, to note some of these divergences 
of theory and practice, that we may be prepared for them 
when we are confronted with them in the detailed part of 
our inquiries. 

First compare the process of legislation in theory, that is, 
according to the strict rules of law, and in practice, 
in the Legislation is effected by the Crown in Parliament ; it is 

ture: the Queen who makes laws with the absent of Lords and 
Commons, and by the authority of the same. But in fetct 
the Commons have an exclusive initiative and control over 
one branch of legislation, the laws by which taxes are im- 
posed ; they have a preponderating influence over all other 
legislation ; and the enacting power of the Crown has, since 
the reign of Henry YI, been reduced to a right to assent 
or dissent to measures submitted by Lords and Commons, 
and the veto to which it has been reduced by custom has not 
been exercised for more than 170 years, 
inihe Or, take again the Executive. The Crown in Council is 

the executive ; the Crown appoints the various ministers who 
conduct the business of government ; but, legally, they are 
only heads of departments acting under the orders of the 
Crown, which makes peace and war, issues charters, increases 
the peerage, is the fountain of honour, of office and of justice. 
The ministers hold their offices during pleasure ; they may be 
dismissed, one or all, at any moment; they are uot in any 



ezecatiye. 



ni.] DIYSBGENCE OF LAW AI7D CUSTOM. 33 

way legally obliged to be in Parliament; their relations to 
Parliament are a matter with which the law is wholly un« 
concerned, except that the acceptance of office necessitates as 
a role the re-election of the member taking office, and that the 
emoluments of ministers depend upon a Parliamentary grant. 

It seldom, if ever, occurs to any one but a student of 
constitutional law that the business of the various departments 
of government might be transacted by men who were not 
in Parliament, and that there is no legal necessity that the 
heads of departments should be responsible for the general 
policy of the country, still less that they should initiate and 
control it. 

This severance, which is possible in law, between the con^- 
taroUing executive, the departmental executive and Parliament 
is now impossible in fact. 

Practical convenience, amounting to necessity, assigns to 
party leaders the headship of departments, and therewith a 
joint and general control of the policy of the country. Parlia"* 
mentary criticism and the many ways in which an adverse 
majority in the House of Commons may thwart and embarrass 
the departments of government make it necessary that those 
who are responsible for such departments should not only act 
together, but should act in harmony with the majority in the 
House. And so it comes about that if our constitution were 
stripped bare of convention and displayed in its legal naked- 
ness, it would be found not only unrecognizable, but unworkable. 

There is another point in which our constitution differs The con- 
firom many. It is not written, and it never has betn written nnwritten, 
out for the information of those who live under it, 6)t the 
guidance of those who have to work it. Doubtless a written 
oonstitntion may suffer imperceptible changes as well ss one 
which is not written. Use alters the shape of things so pliable 
as political institutions : an inconvenient rule is not observed ; 
a convenient practice creeps in. M. Boutmy, in his admirable 
' £tade8 de Droit Constitutionnel,' has shown how the written 



34 CHAEACTEBISTICS OF ENGLISH CONSTITUTION, tin. 

American Constitution has undergone this insensible modifica- 
tion in some of its most important parts. He points out how 
not only has the whole machinery of the Presidential elec- 
tion, in practice, worked away from the constitutional theory; 
but how the Senate beginning as a council of delegates, whose 
duties were mainly executive, and who were bound by the in- 
structions, when given, of those whom they represented, has 
come to be a Second Chamber, the members of which exer- 
cise their discretion freely as critics and moderators of the 
action of the House of Representatives, 
and so If a written constitution can thus by mere force of usage 

changed by depart from its original lines, it is obvious that a constitutioii 
custom ^hich is nowhere set forth in a written form must inevitably 
be more liable to change. For, in the first place, custom 
cannot so easily encrust a constitution which is ever present 
in black and white to those who live under it. And, in the 
second place, such constitutions are rarely changeable by the 
and by Ordinary process of legislation. The constitution is sovereign, 
egiB ation. ^^^ ^ ^^j^ ^^^ ^j^^ Parliament. Law-making is only possible 

within the limits of the constitution, and this can only be 

altered by some assemblage other than the legislature. With 

us Parliament is omnipotent, and statute law is constantly 

acting upon one or another of our institutions, here removing 

. g a form once thought essential^ such as the use of the Privy 

Vict. c. 30. Seal, there extending the franchise to classes hitherto ex- 

J , ^^' eluded from the full rights of citizenship. 

Oomipo- The fact that Parliament can change the constitution in 

PariL^ the ordinary course of legislation does not necessarily operate 

ment. to produci a divergence of law and custom, but it tends to do 

so. For the constitution of a State is something like a human 

organism. It is difficult to change or destroy one part 

without producing efiects not easily estimated or foretold 

upon the whole structure. When Parliament repealed the 

clause in the Act of Settlement which excluded placemen 

from the House of Commons, it was probably thought to do 

no more than run a certain risk of the corruption of its 



Ill,] ENGLISH CONSTITUTION IS UNWRITTEN. 35 

members and of their subseryience to the Crown. It was in 
lealitj making possible oar whole modem system of govern- 
ment. 

I have tried to show first that law and eostom are often at 
variance in our constitution, and I have done this because 
the variance creates a difficulty in setting out the rules of our 
constitution in a clear form. I have also tried to show why 
it is that law and custom are at variance, and that one reason 
is the unwritten and indeterminate character of our consti- 
tation, and that another is its susceptibility to change, owing 
to the absolute power which Parliament possesses over every 
institution in the country. 

But I would be careful to limit this part of my subject 
to a statement of difficulties and an indication of their 
source. 

The fact that our constitution has to be collected from 
statutes, from legal decisions, from observation of the course 
of conduct of the business of politics ; that much of what is 
written is of a negative sort, stating what the Crown and 
its ministers can not do ; that there is no part of it which an 
omnipotent Parliament may not change at will ; all this is 
a puzzle not only to foreign jurists who are prepared to say, 
with De Tocqueville, that the English constitution does not 
exist, but to ourselves who are prepared to maintain that it 
is a monument, if only we can find it, of political sagacity. 
Those who praise it call it flexible ; those who criticise it, 
unstable. We are not concerned with praise or blame, but 
only with the difficulty of putting such a medley of political 
rig^hts and duties into an intelligible form. 

There is another matter of difficulty in understanding the 
Eng^lish constitution arising from its gradual development and 
piecemeal construction. It is impossible to state in a form The rela- 
.iisfactory to the analytical jurist, it is difficult to state in a ex^tive 



clear and coherent form to the practical inquirer, the relations f^^ ^^' 
between the executive and the legislature. 

D 2, 



36 CHABACTEBISTIC8 OP ENGLISH CONSTITUTION, [ill. 

AoBtin's ' It is absnid/ says AoBtin ^, ' to say that the Parliament has 

• 

^*^ legislative sovereign powers, but that the executive sovereign 

powers belong to the King alone. If the Parliament be 
sovereign or absolute, every sovereign power must belong to 
that sovereign body or to one or more of its members as form- 
ing a part or parts of it.' 

Having thus assumed what he desires to prove — ^that there 
can be no severance, in the hands of distinct parties, of the 
sovereign powers of the executive and the legislature, he goes 
on to describe the king as merely an emanation of the 
sovereignty of Parliament. 

nnBuitedto But it is impossible to regard the Crown either in fact or in 

poUtical history as an emanation of the sovereigfnty of Parliament. 

BocietieB. Theoretically, there is no reason why legislative and exe- 
cutive duties should not be discharged by the same person 
or body of persons. It would be perfectly possible for such 
person or body to make laws binding on the whole community, 
to work the machinery of government, to determine the pdiey 
of the country in its foreign relations, to make peace and war. 
But, as M. Laveleye has pointed out', the construction of 
free and highly-organised states is complex, and the complexity 
increases with the guarantees for liberty which the consti- 
tution affords. Laws and taxes, which afi^t all, are, in such 
societies, agreed upon by a body large enough to be repre- 
sentative of the whole community, too large for prompt and 
united action such as is required of an executive which is to 
be vigorous and efficient. 

It would seem to follow that the picture which Austin 
presents of a legislature issuing commands which the execntrre 
is constrained to obey, without which it can do nothing, is 
remote from fact. Unless eveiy act of the executive is to be 

* On JnriBpmdenoe, vol. i. p. 257« 

' ' On pomrait m^me fonniiler oe prineipe, que pins xin r^me politiqiie eat 
simple, plus il Be rapproche de rabsolatisme ; an oontnure, plus il doanc de 
garanties k la liberty, plus il est compliqu^. Rien n'est aussi simple qne le 
despotisme oriental, rien ii'est plus oompliqn^ que les institutionB des Eiate- 
UniB.* JSuai mr leBfarmM de ^auvememeiU, p. 59. 



III.] SXECDTIVB AND LEOISLATURE ABS DISTINCT. 37 

done in obedience to a oomniand of the legislature, the executive 
most be able to do things which are beyond recall, things which 
were neyer expressly ordered, perhaps neyer even contemplated 
by the legislature. That such things are daily done in tree 
States is matter of comm<Ni knowledge, and unless we are, like 
Austin, to be enslaved by a conception of sovereignty which 
csa only be realised in an Oriental despotism, we must admit 
that there is in our constitution, as in others, a legislative 
soveidgnty or supreme law-making power, and an executive 
aoveieignty whose constitution may be changed, but whose 
sets are not, or cannot be, hiJ)ituaUy controlled, by the other. 

In our e(»stitution we can say not only tha^ the executive Executive 
lad legislative powers are distinct to the extent above de- utore^* 
scribed, but that we can trace the process by which *li^i^!^^!Lv 
powas have become distinct. The common element in both oonstitu- 
is the Crown ; the Crown in Council once made laws and also 
eonducted the business of government, and its powers in these 
matters have gradually and for different reasons passed into 
the hands of two different bodies. The need of money, which They are 
the Commons alone could supply, gave them, as we havCp^^^^^f 
seen, a hold upon legislation : while the jealousy of the great *^® Crown 
feudal lords who made up the council, and the inevitable 
increase of business beyond the capacity of an individual to 
transact, tended to place the conduct of the executive in the 
hands of servants or ministers of the Crown. The legislative lodged in 
and executive powers of the Crown have, as it were, bifurcated, i^g^^^ 
and there is a real dualism in our constitution, the Crown in 
Parliament, and the Crown in Council. The severance took 
place so soon as Parliament arose, a body outside the executive, 
but necessary to the executive, by reason of its control over 
supply. Centuries of experience were needed to demonstrate 
the inconvenience of this dualism and to suggest the remedy. 
We now see the de facto executive, the ministers of the Crown, brought 
living their political lives in the midst of the legislature, and harmony 
acting necessarily in close harmony with the majority of the ^^ ParU* 
representatives of the people. We forget that the executive govern- 



38 CHABACTEEISTICS OF ENGLISH CONSTITUTION. 

de jure is the Crown in Council, that the Crown in this 

capacity is wholly outside Parliament, that the part which 

the Crown plays in Parliament ia to make laws, and not to 

But reaUy formulate or defend a policy. The difficulty of understanding 

twofold, ^^y constitution may perhaps be diminished if we remember 

that the Crown in Council was once the sole repository of 

sovereign power, whether executive or legislative ; that this 

power has now passed into two different sets of hands. Ministers 

and Parliament ; while the Crown, in name, does the acts of 

State * aiid in name, though we are apt to forget it, enacts 

laws; and that a happy combination of circumstances has 

brought into intimate connection the two bodies into whose 

hands the real power in these matters has passed. We shall 

be most helped in this inquiry by fixing the attention upon 

^hat has happened, and what does happen, instead of relying, 

like Blackstone, upon phrases ; or, like Austin, wresting fiu^ts 

into harmony with an abstract conception of what a sovereign 

ought to be. 



mm 



CHAPTEE IV. 

THE MEETING OF PARLIAMENT. 

I HATE now endeavoured to define what I mean by the Topics 
words * Constitutional Law ' : I have given a brief sketch of * * ^* • 
the mode in which political forces have been disposed at 
different times in our own constitution ; and I have pointed 
out some characteristics in which our constitution differs from 
others, not only in the actual rules of which it consists, but 
in the process of its development, and the shape in which it 
presents itself to the student. 

I now propose to deal, first, with the Legislature, and then Topics to 
vrith the Executive of this country. I have given reasons ^^^ 
in the last words of the preceding chapter for treating the 
two as distinct parts of the sovereign body, and for holding 
that it is impossible to subordinate the one to the other. 
Bat though Parliament does not in fact control the execu- 
tive, there is nothing which by legislation it might not 
effect. It is the supreme power in the state and should be 
dealt with first. 

So I propose to divide the general subject-matter of my Parlia- 
treatise into Parliament and the Crown, or the Legislature ^^^ ^ 
and the Executive, and to devote this volume to the con- ^^^'^ 
sideration of Parliament. 

The subjects which fall under the head of Parliament may 
conveniently be arranged thus : — 

First, we must get Parliament together and regard it as 



40 THE MEETING OP PAKLIAMENT. [iV. 

The meet- & whole in respect of its summons, the setting in motion of 
Uwnent ' its business^ its adjournment, prorogation, and dissolution. 

Secondly, we must consider in detail the constituent parts 

of the two Houses of Parliament, the Commons and the 
Constita- Lords, in respect of the process by which the members of 
privuLes either House attain to membership, and the privileges which 
?J *^® such membership confers upon the individuals, or which the 

Houses collectively enjoy. 
Legisla- Thirdly, we must trace the process of leg^Iation in so fitf 

as it is effected by the joint action of the two Houses. 
The Crown Fourthly, we must consider the part which the Crown plays 
mJa " in making laws and in communicating with the two Houses. 
Interfer- Fifthly, we mufit note as a matter of history, necessary to 
ex^utive ^ dealt with in order that we may understand the present rela- 
with tions of the Houses of Parliament and the Crown, the attempts 

legiBlature. 

which the Crown has made to interfere with or to influence 
the action of the Houses, and ihe attempts which one branch 
of the Legislature has made to control the action of the rest. 
The High Lastly, we must deal with certain functions of Parlia- 
Parlia- ment, other than legislative, which may be conveniently 
included in the term sometimes used for the Houses, ^the 
High Court of Parliament.' 



ment. 



§ 1. Parties to legislation. 

The parties There are three necessary parties to legislation — the Crown, 
tioi^^ *" ^^ Lords, and the Commons. Nominally the Crown makes 
laws, and the Lords and Conmions advise as to their making 
and assent to them when made ; and their assent is necessaiy 
to give validity to the law enacted. And so the enacting 
clause of every Statute runs thus ; — 

' Be it enacted by the Queen's most excellent Migesty, by and 
with the advice and consent of the Lords Spiritual and Temporal 
and Commons in this present Parliament assembled, and by the 
authority of the same, as follows.* 

The actual process by which laws are made, and the part 
whidi the Crown bears in making them, will be [dealt with 



'.'?**'• 



a I, 2.'] WHO ARE SaMMOKSD TO PABLIAME17T. 41 

latxsr ; and the omnipotence of the legislatnre thns constitnted 
may properly be considered when we have seen what it is made 
of, and how it works. It is enough here that laws can only 
be made by an assembled Parliament, and by the concurrence 
of the two bodies of which that Parliament consists, and of 
Uie Grown. 

And first we must ascertain who are invited to attend upon 
this Parliament, for what purposes and in what manner 
it is Intnight together, how its business is set in motion, and 
how it may be dismissed for a time or dissolved for good. 

We shall find in the end, that, as regards the functions The duties 

of P&rli A- 

of Parliament, the bodies of which Parliament consists are ^ent. 
not summoned mainly, or even primarily, for purposes of 
legislation; that legislation is only one of various functions 
wfaidi they discharge ; that tibey discuss all matters of 
public interest ; that they criticise the conduct of ministers; 
that they may address the Crown on matters of geneial 
polity, and in tiie last resort may bring to justice a great 
political offender. But what we are concerned with here is 
tiie Itgfl constitution of the Houses of Parliament, the l^al 
rights of their members, and of each House in its entirety, 
and their powa:, in conjunotion with Hie Crown, of making 
lavni which can affect all private and public rights within the 
United Elingdom^ 

The right to discusa matteiB of general interest, the right 
to criticise the conduct of ministers, is also matter of oonstitu«» 
tional law and must be dealt with under the head of Parlia* 
mentazy privil^^ and otherwise. But we must first constmct The oon- 
eor Barliament, and it is necessary, in order to understand its Pariia- 
coQsbitutionj that we riionld glance, however briefly, at its °^®^^* 
early history. 

§ a. WJo 4ir€ iummaned io Parliament 

We need not consider the Assembly of the Wise under the 
Sacsm monardiy, nor the Council of the Magnates under 
the Norman kings'; it is enough that in times when the 



42 THE MEETING OF PARLIAMENT. [iV. 

business of State was rather the declaration and enforce- 
ment of custom than the enactment of new laws or the 
changing of old ones, and when the King discharged in 
person the executive duties of government, he acted in 
concert with a body which, whether the qualification for 
membership was wisdom or property, advised, and to some 
extent controlled, his action. 
The The first formal provision for the summons of an assembly 

of tenantB- which in any way corresponds to a modem Parliament in 
in-chief, ^j^^ mode and object of its summons, is to be found in the 

Magna Charta of 12 15. 
Magna In the twelfth section of the Charter, John promises that 

Charta, . . 

B. 1 2. he will not levy scutage or aid other than the three recognized 
feudal aids, * nisi per commune consilium regni.' And in the 

B. 14. fourteenth section, the process of holding this Common 
Council is described. Archbishops, bishops, abbots, earls, and 
greater barons, are to be summoned individually, ' sigillatim 
per literas nostras.' The tenants-in-chief are to be sum- 
moned ' in generali ' by writs addressed to the sherifis. The 
writs in all cases are to name the day and place of meeidng, 
and the cause of summons. Forty days' notice, at least, is to 
be given, and on the day named the Council is to transact the 
business for which it has been summoned, whether or no it is 
attended by all to whom the summons is addressed. 

How far this clause of Magna Charta expressed and formu- 
lated existing practice is not clear. It was omitted from 
subsequent confii^mations of the charter, and it may have 
been omitted as unnecessary because it was merely declaratory ; 
or as unpopular with the barons who procured these confirma- 
tions because it was too stringent ; or lastly, it may have been 
omitted from no special design, but because other matters 
were more pressing at the time of the confirmations. 

But though it provided for a systematic assemblage of a 
large body of persons interested in the matter of taxation, and 
though it exhibits, in the two modes of summons, the germ of 
the distinction between Lords and Commons, yet the assembly 



§ 2.] WHO ARE SUMMONED TO PARLIAMENT. 43 

for which it provides differs obviously in various ways from 
the later Parliament. 

It differed, firsfly, in that it was not representative. The How far 
clergy are not summoned as an estate, nor are the Commons ; f^om^e 
the inferior derffv, the towns, and those freeholders of the ^^*^^*™®"* 
ehires who held of mesne lords have no place in the commune 
concilium of the Angevin kings. 

It differed, secondly, in the matters to be submitted to it : 
it was not summoned to advise the king generally, but to 
assent to a special form of taxation. 

In fact the representative system had already begun, and 
the provisions of 1 2 15 described an assembly of a type which 
was already passing away. The constitution of the shire 
moot or county court had always been representative, and the 
practice of representation had been applied to the kingdom at 
large in 1213. For to a council held in that year had been 
Bummoned * four discreet men ' of each county, to be sent up 
by the shire moot without reference to their tenure. 

Shire representation, as opposed to representation of the 
tenants-in-chief, does not recur until 1254, when the regents 
of the kingdom (Henry III being in Gascony) summoned four 
knights from each shire, and representatives of the clergy 
from each diocese. The towns were first represented in the 
famous Parliament of Simon de Montfort ; and then through 
various assemblies, more or less completely representative of 
the various interests of the country, we reach ' the great and 
model Parliament,' summoned by Edward I in 1295^. 

This Parliament, both as to causes of summons, and as to The model 
oonstitntion, may be justly regarded as the ideal of a repre- ment, and 
sentative assembly for the affe in which it existed. It was in ^^^ ^®", 
fact to the kingdom what the frill county-court was to the 
shire, an assembhige in which every class and every interest 
had a place. 

And so it was intended to be by the great king who had 
the skill and courage to adapt the organisation of the county 

^ Siabbs. Const. Hist. ii. laS. 



44 THE HEETING OF PARLIAMIIIT. [iV. 

court to the requirements of the kingdom. ^As it was a jmt 
rule/ he says, ^ that what concerns all should bj all be 
approved, so it is veiy plain that we shotild meet common 
dangers by remedies devised in common.' 
SummoiiB To this Parliament were summoned by special writ the 
cle^ ;^ ^ archbishops, bishops, and abbots, and to the writ of summons 
of the two former was attached the pramunietUei dande 
directing the attendance of the heads of cathedral chapters, of 
the archdeacons, and of proctors to represent the chapters and 
baronage; the parochial clergy. Special writs of summons were directed 
oommons. to seven earls and forty-one barons. And writs were ad- 
dressed to the sherifi bidding them cause to be elected two 
knights of each shire, two citizens of each city, two burgeaaeB 
of each borough 

Thus we get a representation t^ the three estates of tiie 
realm, the clergy, baronage, and commons, and their respec- 
tive duties are defined in the writs which summon tiiem. 
The clergy and baronage are summoned ' ad tractandum ordi- 
nandum et fiudendum,' the commons 'ad &ciendum quod tone 
de communi eoncilio ordinabitur.' 

Parliament, then, was in its origin, and is still in law, » 

representative assembly of the three estates of the realm ; for 

all three are still summoned to Parliament. 

The clergy But, in fact, the attendance of the clergy was always given 

drop out jduetantly ; they preferred to meet in their provincial eonvo- 

cations : there they granted taxes for their own estate, and 

the kings, since they got what they wanted &om these 

assemblies, ceased to press for the attendance of the deigy in 

from legis- Parliament. They are omitted from the enactment of Ed- 

^^ ward II, which confines the supreme legislative power to ihe 

king acting with the eonsent of tiie prelates, earls, barona, and 

the commonalty of the realm in Parliament. There is no 

evidence of their attendance from the end of the foniieentli 

from century onward. In 1664 the mode of granting money for 

the extraordinary needs of stecte was changed, and the clergy 

gave up the right to offer separate subsidies to the crown ; 



1 2.] WHO ABE SUHMONBD TO PABLIAIIENT. 45 

thej threw in their lot with the laity, and consented to 

abide by the taxation imposed in Parliament. In 1663, for 15 Cur. II. 

the last time, they granted separate subsidies; in 1664 the 

Act which imposes the taxation of the year includes the o. i, b. 36. 

deigy, but saves their right to tax themselves ; and henceforth 

no distinction is made in taxing clergy and laity, though the 

cleigy are still summoned in the writs addressed to archbishops 

and bishops at the commencement of every Parliament. 

It has been necessary to trace the change from the early 
oouncils of the magnates and tenants in chief to the full 
representation of the estates of the realm, because it is not 
easy to understand some parts of our ParUamentary constitu- 
tion without reference to their history. 

The ancient council of the iins passed into the House of S^^^^^l ^^ 

... early oon- 

Lords, and carried with it certain privileges and duties at- stitntion of 
tiibutable to its earlier stage of existence. It is not as a^*^^*' 
representation of the baronage, but as members of the magnum 
ecmciliuM that the Peers are the hereditary counsellors of the 
Crown, and in their judicial capacity form an ultimate court 
of appeal. It is because they were once members of the 
waffnum concilium that the judges are now summoned to 
advise, though not to sit as Peers of Parliament. The clergy 
are still summoned as an estate of the realm, though for 
centuries their summons has been a mere form. And the 
connection of the representation of the Commons with the 
counly coart and the organisation of the shire is still indicated 
by the part which the sheriff takes in county elections, while, 
down to the year 1872, such elections still took place in the 
county court, and the identity of the member and the powers 
conferred on him were testified by indentures to which the 
sheriff and the men of the county were parties. 

We have now glanced as briefly as may be at the historical 
beginnings of Parliament, so as to learn what a Parliament is. 
It is an assemblage of the three estates of the realm, which 
one of tiie estates persistently declines to attend. It consists, 
therefore, of the baronage and commons sxmimoned by the 
Grown* 



46 



THE MfiETlNG OF PARLIAMENT. 



[ir. 



Objects of 
flommons: 

historical ; 



money ; 



opinion. 



§ 3« Objects of Summons. 

It will be best to consider next for what purposes it is 
summoned, and in what manner. 

The king, when he summoned a Parliament at the beginning 
of our Parliamentary histoiy, had two distinct objects in view, 
neither of which would have been adequately attained with- 
out a representation of the estates as complete as was possible 
at that time. He wanted money, and he wanted to ascertain 
that the nation was with him in matters of general policy. It 
was for this reason that the writs to the sheriffs desire that 
the representatives of the commons may have ample power, 
'ita quod pro defectu hujusmodi potestatis negotium infectum 
non remaneat.' Labour would be thrown away if the repre- 
sentatives granted an aid which their constituents repudiated. 
It was for this reason, too, that the Commons were consulted 
on questions of general administration and of peace and war, 
though they endeavoured to adopt the position of critics and 
advisers without incurring the responsibilities of the executive, 
and wisely declined to advocate a policy which, if followed, 
might involve pecuniary liabilities to themselves and their 
representatives ' . 

At the present time the Commons have entire control over 
the finances of the country; the revenues with which the 

financial; Crown can deal without the intervention of Parliament are 
not enough to carry on the business of government for a 
single day. No doubt there is a considerable revenue derived 
from taxes which do not depend on annual Acts of Parliament ; 
but little of this revenue can be applied without the consent 
of Parliament which appropriates every session the money 
which is raised to the services for which it is wanted. 

l^slative; And there is another necessity for the meeting of Parlia- 
ment which is comparatively modem. The machinery of 
government has become infinitely complex : it requires to be 
renewed or remodelled by almost continuous legislation. 



Modem: 



' Stabbs, Const. Hist. ill. 603. 



$§3,4-] FOBMS OF SUMMONS. 47 

Some Acts of Parliament are temporary, either because they 
are experimental, or because they confer powers on the 
executiye which it is thought expedient for the legislature 
to control by annual enactment. Instances of the first of 
these kinds of legislation are the Ballot Act and the 
Employer's Liability Act, of the second the Army Discipline 
Act. And besides these, there are incessant demands upon 
Parliament for new legislation, to regnlate trades, to confer 
powers upon public bodies, or to impose checks upon the use 
of powers already conferred, to control the exercise of the 
rights of property or even of contract* Mediaeval legislation, 
where it was not simply declaratory of custom, was scanty, 
and, to judge from the preambles of statutes, timid and even 
apologetic. Modem legislation is restless, bold, and almost 
inquisitorial in its dealings with the daily concerns of life. 

But the Queen, when she calls a new Parliament, makes but, in 
no mention of the financial or legislative duties which that uberatiye 
Parliament is sunmioned to discharge. She calls it ' being de* 
sirous and resolved as soon as may be to meet her people, and 
to have their advice in Parliament.' It is in fact for purposes 
of discussion primarily that Parliament is summoned. Its 
leg^lative activity has developed, since the form of the B;oyal 
Proclamation which calls it has become settled by custom. 

§ 4. Forms of Summons. 

The existence of Parliament in modem times is kept as 
nearly continuous as possible, and hence the dissolution of one 
Parliament and the calling of another are efiected by the 
same Royal Proclamation issued under the Great Seal. The 
Proclamation discharges the existing Parliament from its 
duties of attendance, declares the desire of the Crown to have 
the advice of its people, and the royal will and pleasure to call 
a new Parliament. It further announces an order given by 
the Crown to the Chancellor of Oreat Britain and Ireland to 
issue the necessary writs, and states that this Proclamation 
is to be their authority for so doing. 



48 THE MBETIVa OF PARLIAMENT. [iT. 

Until reoent times it wm the practioe for a warrant under the 
sign maTinal to be given by the Crown to the Chancellor to 
Order in issue the necessary writs. This has ceased to be done : an 
Order in Council is made directing that writs shall be ismedi 
but, as a matter of &ct, the Boyal Proclamation is treated by 
the Crown OfBce in Chancery as the authority for the issoe 
of the writs to be presently described. 

It may be convenient to set out here the form of Proclama* 

tion above described and of the Order in Council following 

upon it : — 

Bjf ike Queen, 

A PbOCLAMATION for DiSSOLVINO TBS PBE8ENT PaBLIAMSHT 
AND DECLABINO THB CALLING OF ANOTHER. 

VICTORIA R.— Whereas we have thought fit, by and with the 
advice of our Privy Council, to dissolve this present Parliament, 
which stands prorogued to Tuesday, the X3th day of April next, 
we do for that mid publish this our Royal proclamation, and do 
hereby dissolve the said Parliament accordingly ; and the Lords 
Spiritual and Temporal, and the Knights, Citissens, and Burgesaea» 
and the Commissioners for shires and burghs, of the House of 
Commons are discharged from their meeting and attendance on 
the said Tuesday, the 13th day of April next; and we, being 
desirous and resolved, as soon as may be, to meet our people, and 
to have their advice in Parliament, do hereby make known to all 
our loving subjects our Boyal will and pleasure to call a new 
Parliament ; and do hereby further declare, that, with the advice 
of our Privy Council, we have given order that our Chancellor of 
that part of our United Kingdom called Qreat Britain, and onr 
Chancellor of Ireland, do, respectively upon notice thereof, forth- 
with issue our writs in due form, and according to law, for calling 
a new Parliament ; and we do hereby also, by this our Royal pro- 
clamation under our Great Seal of our United Kingdom, require 
writs forthwith to be issued accordingly by our said Chancellors 
respectively, for causing the Lords Spiritual and Temporal and 
Commons, who are to serve in the said Parliament, to be dnly 
returned to, and to give their attendance in, our said Parlianent ; 
which writs are to be returnable on Thursday, the 29th day of 
April next. Given at our Court at Windsor, this 24th day of 
March, in the year of our Lord 1880, and in the 43rd year of our 
reign. God save the Queen. 



■< n '■ 



n 



§ 4.] FOBMS OF SUMMONS. 49 

Order in Council for the Issne of Writs. 

At the Court at Windsor, the 24tb day of March, 1880. Present, 
The Queen's Most Excellent Majesty in Council. Her Majesty 
having been this day pleased by Her Eoyal Proclamation to dis- 
Bohe the present Parliament and to declare the calling of another, 
ifl hereby farther pleased, by and with the advice of her Privy 
Council, to order that the Bight Honourable the Lord High 
Chancellor of that part of the United Kingdom called Great 
Britain, and the Bight Honourable the Lord Chancellor of Ireland, 
do respectively, and upon notice of this Her Majesty's order, 
forthwith cause writs to be issued in due form and according to 
law for the calling of a new Parliament, to meet at the city of 
Westminster ; which writs are to be returnable on Thursday, the 
29th day of April, 1880. 

The write were returnable, according to the provisions of 
Magna Charta, within forty days of their issue ; this period 
was extended after the union with Scotland to fifty days, and 
has been reduced, in view of the greater ease of communica- 
tion, by an Act of the present reign, to thirty-five days. '5 "^ct- 

The writs issued from the Crown Office are addressed to 
five different classes of persons : to the temporal peers of Five 
England, to the spiritual peers of England, to the twenty- Bummoned. 
eight temporal peers of Ireland, to the judges of the High 
Court of Justice, the Attorney and Solicitor General, and the 
Queen's Ancient Serjeant, and to the returning officers of places 
entitled to elect members to serve in Parliament. 

The writs are in the following forms : — 

Writ of Summons to a Temporal Peer of England, 
Victoria by the grace of God of the United Kingdom of Great Writ to 

ftitain and Ireland Queen, Defender of the Faith, to our p^^'*^ 

Greeting. Whereas by the advice and consent of Our 

Council for certain arduous and urgent a&irs concerning us, the 
State and defence of our said United Kingdom and the Church, 
We have ordered a certain Parliament to be holden at our City of 

Westminster on the . day of next ensuing, and there 

to treat and have conference with the Prelates, Great Men, and 
Peers of our Realm. We strictly enjoining command you upon th$ 

E 



60 



THE HEETINO OF PASUAMBNT. 



[IV. 



Writ to 

•pirituAl 

peer. 



Fnemtuii- 

entea 

clause. 



faith <md aUegiance by which you are hcvrnd to us that the weighti- 
nesB of the said affairs and imminent perils considered (waiving all 
excnses) yon be at the said day and place personally present with 
Us and with the said Prelates, Great Men, and Peers, to treat and 
give your conncil upon the afiairs aforesaid. And this as yoa 
regard Us and Our honoor and the safety and defence of the said 
United Kingdom and Charch and dispatch of the said affairs in 
no wise do you omit. Witness Ourself at Westminster the day 
of in the year of our Beign. 

To . A writ of summons to Parliament the day of 

next* 

Wrii of summons to a Spiritual Peer {with Pramunientes clause,) 

Victoria by the grace of God of the United Kingdom of Great 
Britain and Ireland Queen, Defender of the Faith, to — -— Greeting. 
Whereas by the advice and assent of Our Council for certain 
arduous and urgent affairs concerning Us the State and defence of 
Our said United Kingdom and the Church, We have ordered s 
certain Parliament to be holden at our City of Westminriier on 

the — day of next ensuing, and there to treat and have 

conference with the Prelates, Great Men^ and Peers of our Bealm, 
We strictly enjoining command you upon the faith and love by 
which you are bound to Us that the weightiness of the said afiaira 
and imminent perils considered (waiving all excuses) you be at the 
said day and place personally present with Us and with the said 
Prelates, Great Men, and Peers, to treat and give your council 
upon the affairs aforesaid. And this as yon regard Us and Cor 
honour and the safety and defence of the said United Kingdom and 
Church and dispatch of the said afiiairs in nowise da you omit. 

Forewarning the Dean and Chapter of your Church of and the 

Archdeacons and all the Clergy of your Diocese that they the said 
Dean and Archdeacon in their proper persons and the said Chapter 
by one and the said Clergy by two meet Proctors severally, having 
full and sufficient authority from them the said Chapter and Cleigy, 
at the said day and place to be personally present to ccmseni ta 
those things which then and there by the Common Council of our 
said United Kingdom (by the favour of the Divine Clemency) shall 
happen to be ordained. Witness Ourself at Westminster the ■ ■ 
day of — — in the — ^ year of our Beign. 

To ■■ . A writ of summons to Parliament, to be holden the 






day of 



next 



I 



n 



U] FORMS OF SUMMONS. 51 

The writ of sammons to an Irish Bepresentative Peer 
follows the form of the writ addressed to the peer of 
Great Britain, after first reciting the faet that the peer sum- 
moned had been dtdy elected in porsnance of the provisions of 
the Act of Union. 

Wrif of summons addressed to ike Judges^ tie Attorney and 
Solicitor General, and the Queen^s Ancie^it Serjeamt. 

Victoria, Ac, to our trusty and well beloved Greeting. Writ to 

Whereas by the advice and assent of our Council for certain J™**» **'• 
ardaons and urgent affiiirs coDceming' Us the State and defence of 
oar said United Kingdom and the Church we have ordered a 
certain Parliament to be holden at our City of Westminster on 

the day of next ensuing and there to treat and have 

eonference with the Prelates, Great Men, and Peers of our Realm. 
We strictly enjoining command you that (waiving all excuses) you 
be at the said day and place personally present with us and with 
the rest of our Council to treat and give your advice upon the 
affairs aforesaid, and this in no wise do you omit. 

Witness Onrself at Westminster, &q. 

Writ addressed to the sheriff or returning officer of a county or 
horonghfor the election cfa member of the House of Commons. 

Victoria by the grace of God of the United Kingdom of Great Statutory 

Britain and Ireland Queen, Defender of the Faith, to sheriff. 

Greeting. Whereas by the advice of our Council We have ordered 

a Parliament to be holden at Westminster on the day of 

next. We command you that, notice of the time and place of'election 
being first duly given, you do cause election to be made according 
to law of \one\ member to serve in Parliament for ■ And 

that you do cause the name of such member when so elected, 
whether he be present or absent, to be certified to us in Oar 
Chancery, without delay. 

Witness Ourself at Westminster the ■ day of in the 

year of Our Reign and in the year of our Lord One thousand 

eight hundred and • 

To . A writ of a new election of — member for the 35 * 3^ 

laid . ^"''- ^- 3^' 

£ 7, 



62 



TBE MEETING OF PARLIAMENT. 



[IV. 



Scotch 
peen. 



Temporal 
and Spiri' 
taal peen. 



Premn 
nientes 
clause. 



As to these writs it is desirable to note the following^ 
points : — 

I. The Scotch representative peers do not receive a writ of 
summons ; their election is made in pursuance of a separate 
Proclamation, and is certified to the clerk of the Crown in 
Chancery hj the Lord Clerk Register of Scotland, and by 
the clerk of the Crown to the clerk of the House of Lords. 
Irish peen. 2. The mode of election of the Irish representative peers 
will be dealt with hereafter. 

3. The temporal peers are summoned as in the mediseval 
writs ^ on their faith and allegiance,' and the spiritual peers in 
like manner ' on their faith and love,' and in other respects 
the writs of toHlay differ little if at all from those of four 
hundred years ago. 

4. The Prsemunientes clause by which the Bishop is in- 
structed to sununon the clergy of his diocese to be present and 
consent to that which Parliament may ordain still recognizes the 
position of the clergy as an estate of the realm, and it must be 
distinguished carefully from the summons to Convocation, an 
exclusively clerical assembly, of which more hereafter. 

5. The Judges, together with the Ckieen's Ancient Seijeant 
(when that office is filled) and the Attorney and Solicitor 
General are summoned, but in an inferior capacity. They are 
not summoned ' on their faith and allegiance/ nor to be present 
' mtA the said Prelates, Peers, and Great Man,' but ' with us 
and with the rest of our council to treat and give your 
advice.* 

It is in virtue of this summons that the Judges are called 
upon to give their opinions on difficult points of law which 
come before the House of Lords as a Court of Appeal. But 
they do not come as Peers of Parliament, and recent procedure 
in the matter of their summons shows that it is regarded 
rather as an obligation than as a dignity. 

For before the Judicature Act the summons, by long custom, 
was limited to the judges of the old Common Law courts, the 
Chief Justices and puisne judges of the Queen's Bench and 



Judges' 
sommons. 



{ 4.] FORMS OF SUMMONS. 53 

Common Fleas, and the Chief Baron and Barons of the 
Exchequer. 

Since the Judicature Act the summons is extended to all 
the judges of the High Court of Justice, but not to the Lords 
Justices of Appeal^ because their higher rank is thought to 
exempt them from the liability to a summons. Nor would 
this writ in anj ease be issued to a judge who was entitled to 
be summoned as a temporal peer. 

6. The writ addressed to the returning officer for the election 
of a member of the House of Commons is a modem form pro- 
vided by the Ballot Act of 1872. 

But it is worth while to set out the form of writ which was 
in use until that date, because it shows how near we still are to 
the constitutional forms of the middle ages, and because it 
indicates, more clearly than the abbreviated modern form, the 
objects of summons and the relation of the representative to 
his constituents; 

Writ addressed to the Sheriff of Middlesex ijih Julyy i837» 

Victoria, by the Grace of God of the United Kingdom of Great Common 
Britain and Ireland Queen, Defender of the Faith, to the Sheriff of ^ sheriff. 
the County of Middlesex, Greeting. Whereas by the advice and 
assent of Our Council, for certain arduous and urgent affairs con- 
cerning Us, the State and defence of our said United Kingdom 
and the Church, We have ordered a certain Parliament to be 
holden at our City of Westminster on the 4th day of September 
next ensuing. And there to treat and ham conference with the 
Prelates, Great Men, and Peers of our Realm, We command and 
strictly enjoin you (Proclamation hereof, and of the time and place 
of election being first duly made) for the said County two Knights 
of the most fU and discreet, girt with swords, and for the Cit^ of 
Westminster, in the same County, two Citizens, and for each of the 
Boroughs of the Tower Hamlets, Finsbury, and Marylebone, in the 
same County, two Bwrgesses of the most sufficient and discreet, 
freely and indifferently by those who at such election shall be p^^ 
present according to the form of the StatvUs in that case made and PP- ^9' 9^ 
provided, yon cause to be elected \ and the names of such knights. 



54 THE M1SKTIK0 OP PAfiLIAMENT. [iV. 

citizens, and burgesses so to be elected, whether they be {Hresent or 
absent, you canse to b6 inserted in certain Indentures to be there- 
upon made between yon, and those who shall be present at «uch 
election, and then at the day and place aforesaid you cause to come 
in such manner that the said Knights for themselves, and the 
Commonalty of the same County, and the said Citizens and Bur- 
gesses for themselyes, and the Commonalty of the said City and 
Boroughs respectively, may have from them fM and gyi^fident 
fower to do and consent to those things which then «nd there by tJie 
Common Council of our said United Kingdom (by the blessing of 
God) shall happen to be ordained upon the aforesaid afiPairs, So that 
for want of such power or throitgh an impromdent election of the 
said Knights, Citizens, or Burgesses the aforesaid affairs may in no 
wise remain unfinished. Willing nevertheless that neither you nor 
PoMfy p. 74. fgfiy QtJier Sheriff of our said Kingdom be in any wise elected. And 
the election so made distinctly and openly under your seal and 
the seals *of those who shall be present at such election, certify yam 
to us in cur Chancery^ at the day and place aforesaid, remitting 
to Us one part of the aforesaid indentures annexed to these 
presents, together with this writ. Witness Ourself at Westminster 
the 17th day of July in the ist year of our reign. 

To the Sheriff of the County of Middlesex. Writ of election to 
Parliament to be holden the nth day of September next. 

The sheriff thereupon issued precept* to the bailiff of the 
* Liberty of the Dean and Chapter of the Collegiate Church of 
St. Peter at Westminster,' and to the returning officers of the 
boroughs, and the precepts were returned to him when the 
elections were duly made ; the county election took place in 
the county court, and the return was sent, together with the 
returns from the city and boroughs, to the Crown Office 
in Chancery. 

These returns were in all cases accompanied by indentures, to 

7 Hen. IV. which the returning officer and a number of electors were parties. 

ti Hen VI. ^^y ^^^ required by Acts of Henry IV, and Henry VI, and 

c. 15- their object was to secure that the persons returned by the 

aheriff were in truth the persons elected by the oonstituencieB. 

The indentures foUow closely the terms of i^e writ, and Hib 

terms of the writ, being the same or nearly the same as in the 



«i 



§5.] THE OPBKINO OF PARLIAMENT. 65 

beghmings of representation are express in the requirement 
that the person retnmed should have full power to bind the 
constituency. The indenture therefore at first sight creates the 
impression that it was designed to constrain the electors to 
abide by the acts and promises of their representative done on 
their behalf. But in fact the object of the indenture, as may 
be seen from the statute which requires it, was to secure the 
identity of the person elected with the person returned. 

Thus mudi as to the mode in which a Parliament is sum- 
moned. We have next to see how it is brought together and 
its business set in motion. 

§ 5. Tie openinff of Parliament 

The Parliament meets on the day appointed in the Pro- The Msem- 
clamation of summons. The Sovereigli is not usually present Hoiue. 
at the opening of a new Parliament, but issues a commission 
under the Oreat Seal for that purpose. The Houses assemble 
in their respective chambers, and the Commons are summoned 
to the House of Lords. There the letters patent constituting 
a commission for the opening of Parliament are read, and the 
Lord Chancellor desires the Commons to choose a Speaker. 

Of the Speaker we shall have more to say presently. It is 
enough here to note that he is not only chairman of the 
Commons for the purpose of maintaining order and declaring 
or interpreting the rules of the House, but also the spokesman 
and representative of the House for ihe purpose of communica- 
tions made in its collective capacity to the Crown. 

The Commons retire to choose their Speaker, ihe formal Election of 

Speaker. 

business of the chair being, for the purposes of the election, 
discharged by the clerk of the House. On the election being 
made the Speaker takes the chair, and the mace, the symbol 
of his office, is laid before him on the table. 

The House adjourns until the following day, and then the 
Speaker takes the chair until summoned by the officer of the 
Lords to the presence of the Lords Commissioners. He goes "^ 

to the bar of tiie House of Lords with tiie members of the 



56 tHB MliETINa OF PARLIAMENT. [iV. 

Commons, annoances his election, and ' submits himself with 
all humility to her Majesty's gracious approbation.' 

The Lord Chancellor expresses the approval by her Majesty 
of the choice of the Commons, and confirms him as Speaker. 
After this is done he demands the 'ancient and undoubted 
rights and privileges of the Commons.' These are granted, and 
the Speaker with the Commons returns to the Lower House. 

There are two things to consider before we come to the 
declaration by the Queen of the objects of summons in the 
speech from the Throne. 
Evidence /a) The first is the evidence by which the members of the 

of member- ... 

ship. two Houses can establish their rights to membership. 

(b) The second is the perfecting of the title to sit. 

{a) In the Lords those who have received writs of summons 

present them at the table of the House, the roll of those 

entitled, as hereditary peers of England, to receive writs, being 

delivered by the Garter King at Arms. The title of the 

Post, representative peers of Scotland is evidenced by a certificate 
delivered by the clerk of the Crown of a return made to him 
by the Lord Clerk Register of Scotland. Garter King of 
Arms delivers at the table of the House a list of the Lords 
Temporal, and the list is ordered to lie upon the table. A 
new peer presents his patent to the Lord Chancellor at the 
Woolsack, and this, together with his writ of summons, is 
read by the clerk of the House. 

In the Commons the clerk of the House receives from the 
clerk of the Crown in Chancery a book containing a Hst of 
the returns made to the writs issued, and this is the sole 
evidence furnished to the House. The returns themselves are 
retained in the Crown Ofiice during the continuance of a 
Parliament in case reference should be required to be made to 
them. After this they are transferred to the Petty Bag* 
Office, and ultimately to the Record Office. 

Perfecting ( j) The second is the perfecting of the title of a member to 

of title to . . . ° 

«8it. discharge the duties of his office, and for this it is necessary in 

the House of Lords that the oath of allegiance should be taken 



§5.] THB OPENING OP PARLIAMENT. 67 

and subecribed, and in the Hotme of Commons that this should 
be done or a declaration made to the same effect. 

It had been customary for members of both Houses of The oath. 
Parliament to take the oath of allegiance from the year 1534 
onwards, and the oath of supremacy from the year 1558. 

The oath of supremacy was required to be taken by the 5 E^z. c 1 . 
Commons in the fifth year of Elizabeth, and the oath of allegi- 7 jamee I, 
ance in the seventh year of James I, but these oaths were taken ^ 
before the Lord Steward sitting in the Court of Requests. It was 
not until the last year of Charles II that they were prescribed 
to be taken by both Houses and in Parliament. By an Act of 30 Car. II, 
that year the Lords and Commons in their respective Houses 
were to take and subscribe the oaths of allegiance and supremacy 
before they were entitled to sit and vote. The law on this Pojf<,p.88. 
subject has undergone various changes. As provided by 31 & 
32 Vict. c. 7a, the form of oath required runs thus : — 

I do swear that I will be faithful and bear true allegiance Its form. 

to her Majesty Queen Victoria her heirs and succeasors according 
to law. So help me God. 

For this oath a solemn form of declaration has been substi- 
tuted, in the case of Quakers, Moravians, and Separatists, by 
19 & 20 Vict. c. 19. 

As regards the time of taking the oath : when a new Parlia^ 
ment meets, the Lords take the oath as soon as the Parliament 
has been opened ; the Commons as soon as the Speaker has 
been approved by the Crown, and has himself taken the oath. 
On the election of a member during the continuance of a 
Parliament he is entitled to take the oath as soon as the 
certificate of his return has reached the Clerk of the House. 

The time for taking the oath is in the House of Lords 
limited to the hours between 9 a.m. and 5 P*^* ^^ ^® 
Commons it may be taken at any time of the day that a full 
House is sitting, and before it has commenced business. 

It should be noted that a failure to take the oath prevents Result of 

failare to 

a member of the House of Commons from sitting and voting take it. 



58 THE MEETING OF PAELIAMENT. [ll. 

afi tk member of the House, bat that he is none the leas a 
member as regards his constituency, and that he is for some 
purposes a member of the House of Commons. His seat is 
not vacant, and he is capable of discharging all the duticfi and 
enjoying all the rights of a member short of sitting witiiin tbe 
bar of the House, taking part in its debates, and voting in its 
divisions. When the Houses are duly constituted by the com- 
pletion of the forms described. Parliament is prepared te hear 
the causes for which it is summoned. 

At the commencement of a session which is not ulso the 
commencement of a Parliament the proceedings relating to 
the election of a Speaker and the taking of the oath are not 
needed, and the Houses axe at once informed o£ the caosea of 
summons* 
The speech The Queen, if she meets Parliament in person, goes down 
Throne, to the House of Lords, and takes her seat upon the throne ; 
the Lord Chamberlain is bidden to desire the usher of the black 
rod, the officer of the House, to command the attendance of 
the Commons. The Commons, with the Speaker at their head, 
come to the bar of the House of Lords, and the Queen reads 
her speech to the House, in which she informs them of the 
business to be laid before them. 

When Parliament is opened by commission, the Lords 
Commissioners in like manner bid the officer of the House to 
desire the attendance of the Commons, and the speech is read 
by the Lord Chancellor acting under the commands of Hie 
Crown. The Houses adjourn, and when they re-assemble 
proceed to the consideration of the Speech &om the Throne ; 
but before doing so they assert their right to deal with other 
matters than those referred to in the speech, by reading a 
Bill for ihe first time pro formd. The speech is then read 
again in each House, and in each House it is moved that aa 
address be made in answer. 

To this address amendments may be moved, and iibus tiie 
g^eral policy of the Government, as indicated by tiie Speech 
from the Throne, is brought under discussion. 



§ 5.] THE OPENING OF PABLIAMENT. 59 

Each House, when its address has heen agreed to, orders it May, Pari. 
to be presented to the Qneen, bnt the formalities as to the 324-225. 
mode of presentment need not be dealt with here. 

It may give more reality to the details of procedure if I set 
out extracts from the Journals of the Houses describing the 
forms of opening IWliament in the year 1880. 

On the first assembling of the Hoase of Lords, 

The Lord Chancellor acquainted the House, that it not being 112 Lords 
conyement for Her Majesty to be personally present here this day, J- '^S* 
she has been pleased to cause a Commission under the Great Seal 
to be prepared in order to the holding of this Parliament. 

The House adjourned during pleasure, to robe. 

The House was resumed. . 

Then five of the Lords Commissioners, being in their robes, and Summons 

seated on a form placed between the Throne and the Woolsack, the ^^S^^' 

* ' mons. 

Lord Chancellor in the middle, with the Lord Privy Seal and the 
Earl Sydney on his right hand, and the Earl Granyille and the 
Earl of Northbrook on his left, commanded the Grentleman Usher 
of the Black Rod to let the Commons know, the Lords Commis- 
sioners ' desire their immediate attendance in this House, to hear 
the Commission read.' 

Who being come, with their Speaker ; the Lord Chancellor said — 
^ My Lords and Gentlemen, 

* We are commanded by Her Majesty to let you know, thai it Powers of 
not being conyenient for Her to be present here this day, in Her gj^^"^'"' 
Eoyal person. She hath thought fit, by Letters Patent under the 
Great Seal, to empower His Royal Highness the Prince of Wales 
and seyeral Lords therein named to do all things, in Her Majesty's • 
name, which are to be done on Her Majesty's part in this Parlia- 
ment, as by Letters Patent will more fully s^pear.' 

Then the said Letters Patent were read by the Clerk. 

And then the Lord Chancellor said— 
* My Lords and Gentlemen, 

'We haye it in command from Her Majesty to let you know, that Direction 
as soon as the members of both Houses shall be sworn, the causes ^,^ 
of Her Majesty's calling this Parliament will be declared to you ; 
and it being necessary a Speaker of the House of Commons should 
be first chosen, it is Her Majesty's pleasure that you, gentlemen of 
the House of Commons, repair to the place where you are to sit, 



60 THE MEETING OP PARLIAMENT. [iV. 

and there proceed to the choice of some proper person to be your 
Speaker ; and that yon present such person whom yon shall so 
choose, here, to-morrow, at two of the clock, for Her Majesty's 
royal approbation/ 

We will now change the scene to the House of Commons, 
to which the members of that House retmned. 
1 35 ^om, QiY Thomas Dyke Acland, addressing himself to the Clerk (who, 
standing up, pointed to him and then sat down), proposed to the 
House, for their Speaker, the Right Honourable Henry Bouverie 
William Brand ; and moved, ' That the Bight Honourable Henry 
Bouverie William Brand do take the chair of this House as 
Speaker'; which motion was seconded by Sir Philip de Malpas 
Grey Egerton. 

The House then calling Mr. Henry Bouverie William Brand to 
the chair, he stood up in his place, and expressed the sense he had 
of the honour proposed to be conferred upon him, and submitted 
himself to the House. 
Election of The House then again unanimously calling Mr. Henry Bouverie 
Speaker. William Brand to the chair, he was taken out of his place by the 
said Sir Thomas Dyke Acland and Sir Philip de Malpas Grey 
Egerton, and conducted to the chair, where, standing on the upper 
step, he returned his humble acknowledgments to the House for 
the great honour they had been pleased to confer upon him, by 
unanimously choosing him to be again their Speaker. 

And thereupon he sat down in the chair ; and then the Maoe 
(which before lay under the table) was laid upon the table. 

Then Lord Frederick Cavendish, having congratulated Mr. 
Speaker elect, moved, ' That the House do now adjourn' ; and 
Sir Stafford Northcote, having also congratulated Mr. Speaker elect} 
the House accordingly adjourned till to-morrow. 

On the following day, the 30th of April, the Lords met, 
and five of the Lords Commissioners being seated as before 
again sent to the Commons to desire their immediate attendance 
in this House. 

1 1 2 Lords Who being eome ; 

J. 126. r£^Q Right Honourable Henry Bouverie William Brand said — 

' My Lords, 
* I have to acquaint your Lordships that in obedience to Her 
Majesty^B commands, the Commons have, according to their nn- 



§5-] THE OPENING OF PARLIAMENT. 61 

doubted rights and privileges, proceeded to the election of a 
Speaker, and that their choice has fallen upon myself, I now 
present myself at your Lordships' bar, and submit myself with all 
humility to Her Majesty's gracious approbation.' 

Then the Lord Chancellor said — 
' Mr. Brand, 

* We are commanded to assure you that Her Majesty is so fully Approval 
sensible of your zeal for the public service, and of your ample ^ P®*'^®''- 
sufficiency to execute the arduous duties which Her faithful 
Commons have selected you to discharge, that she does most readily 
approve and confirm you as their Speaker.' 

Then Mr. Speaker said — 
* My Lords, 

'I submit myself with all humility and gratitude to Her 
Majesty's most gracious commands, and it is now my duty in the 
name and on behalf of the Commons of the United Kingdom, to Demand 
ky claim by humble petition to Her Majesty to all their ancient iJ^^' 
and undoubted privileges, particularly to freedom of speech in 
debate, to freedom from arrest of their persons and servants, to 
free access to Her Majesty when occasion shall require ; and that 
the most favourable construction should be put upon all their pro- 
ceedings; and with regard to myself I pray that if any error 
should be committed it may be imputed to myself, and not to Her 
Majesty's loyal Commons.' 

Then the Lord Chancellor said— 
*Mr. Speaker, 

'We have it further in command to inform you that Her 
Migesty does most readily confirm all the rights and privileges 
which haye ever been granted to or conferred upon the Commons 
by any of her royal predecessors. 

' With respect to yourself, Sir, although Her Majesty is sensible 
that you stand in no need of such assurance. Her Majesty wiU 
ever put the most favourable constructions upon your words and 
actions/ 

Then the Commons withdrew. 

We will again follow them to their own House, whither 
being returned : — 

Mr. Speaker reported — That the House had been in the House X35 ^<^^' 
of Peers, where Her Majesty was pleased by Her Commissioners ' '^^* 
to approve of the choice the House had made of him to be their 



•2 THB KEETUrG 0? PABUAMENT. [iT. 

Report of gpeaker ; and tluit be had in their name and on their behalf by 
humble Petition to Her Majesty, laid claim to th^r ancient and 
undoubted Bights and Privileges, particularly to freedom from 
arrest and all molestation of their Persons and Seryants; to 
freedom of Speech in Debate ; to free access to Her Msjesty when 
occasion shall require ; and that the most favourable construction 
should be put upon all iiieir proceedingB ; which, he said, Her 
Majesty, by Her said Commissioners, had confirmed to them in as 
full and ample a manner as they have been heretofore granted aad 
allowed by Hor Majesty, or any of Her Boyal Predecessors. 

And then Mr. Speaker repeated his most respectful acknow- 
ledgments to the House for the high honour they had done him. 

Mr. Speaker then put the House in mind that the first thing to 
be done was to take and subscribe the oath required by law. 
Taking of And thereupon Mr. Speaker, first alone, standing- upoii the 
upper step of the Chair, took and subscribed the oath. 

Then several Members took and subscribed the oath, and several 
Members made and subscribed the Affirmation required by law. 

And then the House adjourned till to-morrow. 

The fact of a change of ministry having taken place in conse- 
quence of the result of the elections in 1 880 caused a delay in the 
announcement of the caoses of summons. The new ministers 
Adjoivn. ^gpg obliffed to offer themselves for re-election, and therefore 

ment for ° 

re-olec- on the 3rd of May the Commons were i^^ain summoned to the 
House of Lords to be told that so soon as the seats vacated by 
acceptance of office were filled they might proceed to the con- 
sideration of ' such matters as will then be laid before them.' 

The Houses therefore proceeded with merely formal business, 
broken by adjournments for several days at a time. In the 
Commons orders were made for the Speaker to issue warrants 
to the Clerk of the Crown directing new write to be made out 
for the election of members for the constituencies whose repie> 
sentatives had vacated their seats by the acceptance of office ; 
members took the oath or made the aflirmation required by 
law ; despatches and papers were presented to the House. In 
the Lordfl fomu^ business of a like character was transacted, 
and the judicial business of the House continued without 
interruption* 



{6.] ADJOUBirMENT, FfiOBQQATION, DISSOLUTION. 63 

On the 2oih of May the Commons weie smnmoned in the 
fi»rm already described, and Her Majesty's speech was read. Speech 
The Commons, retiring to their Hoose, transacted various Throne. 
matters of fermal bnsinesB, aad read a first time the Clandestine bui read a 
Outlawries BiU, after which ^* *^™- 

Mr. Speaker reported that the House bad been at the House of 
Peers at the desire of the Lords Commissioners appointed under 
the Great Seal for holding this present Parliament, and that the 
Lord High Chancellor being one of the said Commissioners dcK 
livered Her Majesty's most gracious Speech to both Houses a£ 
Parliament in pursuance of Her Majesty's commands, and of 
which Mr. Speaker said he had for greater accuracy obtained 135 Com. 
a copy which he read to the House. J. 13^- 

The address as made in answer to the Queen's Speech in Addreas in 
either House calls for no comment. When settled and approved 
the Lords ordered their address to be presented to Her 
Majesty by ' the Lords with White Staves/ the Commons' 
address was to be presented * by such members of this House 
as are of Her Majesty's most honourable Privy Council.' 

§ 6. Adjournment^ Prorogation^ Dissolution, 

We have now bsooght Parliament to the stage at which it 
18 fbUy constituted, opened, and ready to transact business. The 
nature of thi& business and the mode in which it is transacted 
flliall be dealt with later. But having brought our Parliament 
into existence, it is important to know how that existence can 
be terminated ; having put it into a position to transact business, 
it is important to know how that business can be stopi>ed. 

A dissolution brings the existence of Parliament to an end ; 
A prorogation brings the session of Parliament to an end ; an 
adjournment brings about a cessation of the business of one 
or other House for a period of hours, days, or weeks. 

The adjoomment of either House takes place at its own Adjourn- 
discretion, unaffected by the proceedings of the other House. 
Susiness. pending at the time of the acljoumment is taken np 
at the point at which it dropped when the House meets again. 



64 THE MEETING OF PARLIAMENT, [iV. 

The Crown cannot make either House adjonm, or compel a 
resumption of business at an earlier date than the conclusion 
of the adjournment. It has sometimes signified its pleasure 
that the Houses adjourn, but there is no reason why its pleasure 
should also be the pleasure of the Houses. 

Proroga- Prorogation takes place by the exercise of the royal prero- 
' gative ; it ends the session of both Houses simultaneously, and 

terminates all pending business. A bill which has passed 
through some stages, but is not ripe for the royal assent at 
the date of Prorogation, must begin again at the beginning 
when Parliament is summoned again, and opened by a speech 

form of. &om the throne. Prorogation is efiected either by the Que^i 
coming to Parliament and the Royal commands being an- 
nounced in her presence to both Houses by the Speaker of 
the House of Lords, or {2) by a like announcement being 
made by Eoyal Commissioners ; or (3) by a writ issued under 
the Great Seal, a form only used when it is necessary to post- 
pone the meeting of a new Parliament to a later day than that 
for which it was summoned ; or (4) by royal Proclamation with- 

30 & 51 out any formality of a Commission ; this last has been permis- 
sible since 1867, and is the usual form when Parliament is not 
sitting, and is prorogued to a later day than that announced at 
the close of the session. 

The form of such a proclamation runs thus :-^ 

By the Queen, 
A PBOCJLAMATION. 

VICTOBIA R.. 

Whereas our Parliament stands prorogued to the twelfth day of 
November instant; We, by and with the advice of our Privy 
Council, hereby issue our Royal Proclamation, and publish and 
declare that the said Parliament be further prorogued to Wed- 
nesday, the nineteenth day of December, One thousand eight 
hundred and eighty-three. 

Given at our Court at Balmoral this sixth day of November, 
in the year of our Lord One thousand eight hundred and eighty- 
three, and in the forty-seventh year of our reign. 

God Save the Queen. 



Vict. c. 81. 



§ 6.] ADJOURNMENT, PEOBOGATION, DISSOLUTION. 65 

The dissolution of a Parliament may be effected either by Dissolu- 
an exercise of the royal prerogative, or by efflux of time. 
When the Crown exercises its prerogative it may do so By prero* 
in person, should Parliament be sitting, or if not in person ^ 
by Boyal Commission. If Parliament is not sitting, but 
stands prorogued, it is dissolved by Proclamation in the 
manner described on an earlier page. ^*^' 

The usual practice, if Parliament is sitting, is for the Queen 
to prorogue it first and then issue the proclamation just 
described. 

Thus on the 24th of March, 1880, Parliament was pro- 
TOgxied by Royal Commission until the 13th of April, and 
on the evening of the same day a proclamation was issued 
discharging the members of the two Houses from attendance 
on the J 3th of April, and dissolving the Parliament. 

Efflux of time operates to dissolve a Parliament in virtue "Bj effinx 
of the Septennial Act, i Geo. I^ c. 31, and his was a modifi- 
cation of the provisions of the Triennial Act of 1694. 
The last-mentioned Act was a limitation on the prerogative 
possessed by the Crown to keep a Parliament in existence as 
long as it pleased. The necessity for such a limitation had 
become apparent in the reign of Charles II, who retained for 
seventeen years the Parliament called at his accession. Events 
showed that a House of Commons, if it was kept in being for 
so long a time after its election, might cease to represent the 
people ; and that if the House depended wholly on the Crown 
for the continuance of its existence it might be too ready to 
Gavonr the policy of the Court. For this and other reasons 
the Bill for Triennial Parliaments was passed by both Houses 
in 1693, but William withheld his assent until the Bill came 
before him again in the following year. It then became law, 
and so until the beginning of the reign of George I the law 
stood. Within six months of the death of Anne — that is^ early 
in the year 1 715 — the Parliament which had been in existence 
at the date of her death was dissolved ; but when the new Par- 
liament had been in existence little more than a year, it 

"1 



66 THE MEETING OF PARUAMEKT. [lY. 

became dear that the operation of the Triennial Act mi^ht 
produce serious inconvenience, if not actual disaster. The 
succession to the Crown was in dispute, rebellion was still 
smouldering in the north, and there was risk of an invasion. 
Under these circumstances, and not perhaps from any theo- 
retical preference for septennial over triennial elections, Par- 
liament prolonged its own existence to a term of seven years. 
This is the present rule, and Parliament, if not sooner dissolved 
by royal prerogative, expires by efflux of time at the end of 
seven years. 
Effect of Until 1 867 the existence of Parliament was affected by the 
Crown. demise of the Crown. The king summoned the estates of 
the realm, by vnit, to confer with him ; when he died the 
invitatiiA lapsed, and the Parliament was dissolved. The 
theory was not unreasonable, though the practice was incon- 
venient. For whatever may have been the law or the practice 
of early Teutonic societies as to the assemblage of the people, 
our representative institutions took their (Hrigin fit>m the 
king's invitation to the three estates to appear in person, or 
by their representatives, to advise, assent, or enact. It was 
natural that the invitation should lapse and the assembly 
disperse when he who summoned it had died; for the 
mediaeval Parliaments came together, not so much because the 
people wanted to take part in public affidrs, as because the 
king wanted money and information; and the theory that 
Parliament owed its existence to the king's writ was true to 
this extent, that the writ was the recognised means by which 
the three estates could be brought together. 

The inconvenience was met by a series of statutes. 
7 & 8 Will. Ill, c. 15, enacted that Parliament should last for 
six months after the demise of the Crown, if not sooner dis- 
' solved by the new sovereign ; and this rule was applied after 
the union with Scotland and with Ireland to Parliaments of 
the United Kingdom. 37 Geo. Ill, c. 127, s. 34, made pro- 
vision for a demise of the Crown during a dissolution, in 
which case the preceding Parliament is to be revived for 



{ 6.] ADJOURNMENT, PROEOGATION, DISSOLUTION. 67 

six luonths. And now the Bepresentation of the People Act, 
30 & 31 Vict. c. lo:^, § 51, makes the duration of a Parliament 
independent of a demise of the Crown. 

The inconveniences to which the doctrine while it lasted Inoonveiii- 
might give rise may best be illustrated in the case of the the theory, 
flight of James II, when the countiy was left without a king, 
and with no means of satisfying the legal requirements of 
form for summoning a Parliament. 

The Prince of Orange summoned the peers, such members 
of the last three Parliaments of Charles II as happened to be 
in London, and some citizens, and by their advice issued letters 
not in the form of writs, but of the same purport, addressed to 
the Lords Spiritual and Temporal, being Protestants, to the 
Coroners, or in their default to the Clerks of the Peace of the 
counties, to the Vice-Chancellors of the Universities, and the 
chief Magistrates of the towns, summoning a Convention. 
When at the request of this Convention William and Mary 
had accepted the crown and all the elements of a legis- 
lature were present, a Bill was passed which turned the Con- 
vention into a Parliament. It was dissolved at the end of 
the year, and its acts were declared to be valid by the next 
Parliament. 

It is interesting to consider how much of all the procedure 
which I have just described is law, and how much is custom. 
I would include under the term * law ' not only statute law, but 
that which is sometimes called the law of Parliament, a set of 
rules which are really part of the common law ; and under the 
term 'custom' those conventions, a departure &om which would 
not aflfect the validity of any parliamentary proceedings or 
touch any public or private right. 

Statute law determines the number and indicates the mode How much 
of election of the representative peers of Scotland and Ireland, chapter !■ 
it determines the number of the spiritual peers and the num- ^^^ 
ber and status of the Lords of Appeal. It provides a form of Bm 
writ to be addressed to the returning officers of counties and _ ^^ ' 

Pa 



68 THE MEETING OF PARLIAMENT. [V. 

towns. It fixes the form of oath to be taken or declaration 
made, and the penalty for non-observance of this role. It 
determines the duration of Parliament subject to the preroga- 
tive right of the Crown to dissolve, and it has abolished the 
common law role as to the efiect of ihe demise of the Crown 
upon the existence of Parliament, 
how mnch Common law governs all that relates to the prerogative of 
ILaw:""™^'* the Crown ; its right to summon Parliament and to summon 
• it in the form of proclamation ; to open, prorogue, and dissolve 
it, and to do so either in person or by Commission ^. 

The whole of the rights of the Peerage, except in so &t as 
they are touched by Statute, are matter of Common Law, and 
these include the right of summons, and of summons in 
a certain form. 

The existence of the privileges of the House of Commons 
(for we are not heie concerned with their nature and extent) 
is also a pert of the law of the land, although the form is used 
of asking and receiving them by &vour of the Crown ; so 
too is the right of adjournment exercised by both Houses, 
independently of one another or of the Crown, and without 
affecting the resumption of pending business, 
how mnch From these rules, by which right and liabilities public and 
private may be affected, we must distinguish conventions and 
formalities which are legally immaterial. The mode of elect- 
ing a Speaker could be altered at pleasure by the House of 
Commons : the approval of the Speaker-elect by the Qaeen 
IB not seemingly a legal necessity'; the claim of privilege 
made by the Speaker might probably be omitted without 

^ The itatutory and the practical limits to the right and power of the 
Crown to oondact the bosiness of the country without a Parliament will oome 
to be dealt with later. The statutory limits are too wide to be worth men- 
tioning here^ and the practical limits too narrow to be easily explained till 

I have set out the process of legislation in respect of the appropriation of 
supply. 

* Sir E. May cites three cases of Speakers who acted as such without tho 
royal approval ; they occurred in the Convention Psrliament which restored 
Charles 11, in that which elected William III and Mary, and on one oocanon. 
during the insanity of George III in 1789. 



§ 6.] ADJOURNMENT, PBOBOGATION, DISSOLUTION. 69 

affecting the recognition of parliamentary privilege by the 
Courts of law ; and the practice of laying before the Houses 
certain topics in a speech from the Throne, and of replying to 
this Bpeech by addreeses from both HouBes. is seemingly a 
non-essential form. The Houses are not limited to the topics 
set forth in the speech, and the Commons read a bill for a 
first time before considering the speech in order to show their 
independence of it. 



CHAPTER V. 

THE HOUSE OF COMMONS. 

We have dealt so far with the mode in which a Parliament 
is brought into existence, its business set in motion, its session 
terminated by a prorogation, or its existence by a dissolution. 
We are now in a position to deal in detail with the various 
elements of which a Parliament is composed, with the Crown, 
the Lords, and the Commons. It is convenient to reverse the 
order of these in inquiring into the law respecting them, for 
the Commons, though not the most ancient, are the most 
important part of the Legislature, and the most complex, for we 
have to consider not only who may be members of the House 
of Commons and what are their privileges as such, bat who 
may vote and in what manner for members of that House. 

This part of the subject then resolves itself into four topics : 
(i) who may be chosen for the House of Commons ; (i) who 
may choose ; (3) how they may choose ; (4) what are tiie 
special privileges possessed by the House of Commons col- 
lectively, or by its members individually. 

Section L 
Who mat be chosen. 

DiMioftlifi- First, then, we must consider who may be chosen to serve 
H011M of ii^ ^h^ House of Commons, or rather who are disqualified for 
Commom. membership by some incapacity, whether inherent, as in the 



Sect. I. §§ 1, 2.] WHO HAT BE CHOSEN. 71 

cftBe of an infant or lunatic, or acquired by profession or office, 
or incurred by felony, bankruptcy, or corruption. 

§ I. In&nts are disqualified by the law of Parliament accord- Infancy. 
ing to Sir Edward Coke, but their presence in the House was 
occasionally connived at ^, and the disqualification was made 
statutory by 7 & 8 Will. Ill, c 25, s. 7. It was applied to the 
Scotch members by the Act of Union with Scotland, and to 
members returned for Irish constituencies by 4 Greo. lY , c. 55, 
B. 74. 

There have been cases since the passing of 7 & 8 Will. Ill, 
c. 25) in which a minor has been elected and has taken his seat 
without objection. Charles James Fox was returned, took his 
seat, and spoke while yet under age, and Lord John Russell was 
returned a month before attaining his majority. But there 
are no instances of such an infringem^it of the law since the 
passing of the Beform Bill of 1832. 

§ 2. Lunacy or idiocy is a disqualification at Common Law, Unsound- 
and if the House is satisfied that the mind of a member is mind. 
incurably unsound, it will declare his seat vacant, and direct 
the Speaker to issue a new writ. 

The history of the law on this subject may be collected from 
the report ' of a Committee appointed to inquire into the case 
of Mr. Alcock in 1811. 

Cases were not unusual, in times when a seat in the Com- 
mons was not so much an object of ambition as it now is, of 
members asking the House to relieve them of their duties on 
the ground of sickness or other infirmity. A further reason 
for such requests in the case of ill-health would seem to be 
that office was not a disqualification before the beginning of 
the eighteenth century, and consequently a member could not 
vacate his seat by accepting the Chiltem Hundreds^. But 

^ I Com. Joorn. 681. '66 Com. Jonm. 687. 

' In 1604 the borough of Dorchester petitioned that one of iti members, 
llttithew Chnbbe^ might be relieved from hie daties on the ground of bodily Oldfield iiL 
lafinnitj. The buigeeses Msknowledge that Mr. Chnbbe did at the time of hii 346. 
eleotion ' intreat ut that he might be spared therein, offeringe to some other to 
be ohosen &¥9 pounds towards his charges to sexre therein.* They beg that 



L. 



72 



THE HOUSE OF COMMONS. 



[V- 



the House would not declare a seat vacant on snch gronnds, 
unless it was satisfied that the malady was incurable, nor will 
IsMmity. it interfere now except in such a malady as insanity, which 
would make the request and acceptance of the Chiltem 
Hundreds impossible. 

In the case of Mr. Alcook his constituents petitioned^ the 
House complaining that the insanity of their member deprived 
them of his services. He had been found a lunatic upon com- 
mission, and was in confinement. A committee was appointed, 
which, after taking evidence and searching for precedents, re- 
ported that his case was not so hopeless of cure as to justify 
the House in declaring the seat vacant. 

A more recent case is that of Mr. Stewart, where attention 
was called, as a matter of privilege, to the fact that he had 
attended the House and voted in a division while under 
medical treatment for insanity as a certified lunatic. Mr. Boe- 
buck moved for a committee to inquire into the ciroumstanoes 
of the case, but the motion was rejected \ 

From these cases it would seem that the disqualifioation of 
a member on the ground of insanity can be brought before 
the House in two ways : by petition from the constituency 
which is deprived of the services of its member if the member 
is in confinement : or by a question of Privilege being raised 
if a person certified to be of unsound mind should take part 
in the business of the House. 

The House alone can take action in the matter by declaring 
the seat vacant, and the case of Mr. Alcock illustrates the 
extreme reluctance which is felt to such action being taken. 
jUieni. 3. Aliens are incapable of sitting in Parliament both by 

common law and by statute. 

Previous to the year 1700 an alien could acquire capaeily 
for election by becoming naturalised ; but i a & 13 Will. Ill, c 2 
disqualified all persons bom out of the king's dominions, even 

* hB may not seem contennptnoas by hii absence^ that it will pleaae yoo to 
diBmiBse the saide Chnbbe and to graant a writ for the election of anofther.* 
It does not appear that this petition was granted. 
1 (S6 Com. Jouxn. 226. * Hansard, toL 162, p. 1941. 



Scct.I. 5§ 4-6.] WHO MAT BK CHOSEN 73 

though naturalised or made denizens, tmless they had been born Aliens. 
of English parents. 33 & 34 Vict. c. 14, s. 2, excepts political 
capacity (together with the right to own the whole or any 
part of a British ship) £rom the g^eral concession which it 
makes to aliens of equal rights with natural bom British 
subjectB* But the same Act (s. 7) enables an alien to acquire 
by naturalisation the political rights and obligations of a British 
subject, and thus to qualify for Parliament. 

§ 4. A peerage is a disqualification. An English peer may Peers, 
not be a member of the House of Commons, nor may a Scotch 
peer, even though he be not one of the representative peers of 
Scotland. 

But an Irish peer may sit for any county or borough 
of Ghneat Britain so long as he is not one of the twenty-eight 39 & 40 
representatives of the Irish peerage in the House of Lords. q. 67, art.' 4. 

§ 5' ^^^^ of ^^0 Established Church and ministers of the Clergy. 
Chmch of Scotland are disqualified by 41 Geo. Ill, c. 63, and 
clergy of the Boman Catholic Church by 10 Geo. IV, c. 7, s. 9, 
(tiie Boman Catholic Belief Act). 

Until 1801 the capacity of the clergy to be elected to Par* 
liament was a matter of doubt. In that year the question was 
raised by the election of the Bev. J. Home Tooke for the 
borough of Old Sarum. On inquiry it seemed that the autho- 
rities were not clear ^ : as lately as 1785 a committee of the 
House had decided in &vour of the eligibility of a person in 
deacon's orders. At any rate, the House considered the matter 
so doubtful that elections already made were excepted from the 
operation of the Act, and Mr. Home Tooke was allowed to 

. . , . . 4iGeo.III, 

retain his seat. o. 5^, 

33 & 34 Vict, c 91 makes it possible for the clergy of the UnleM di- 
Church of England, whether priests or deacons, to divest them- ^^^„^ ^ 
selves of their orders, and thereby to free themselves from this 
disqualification. 

§ 6. OflSce of various kinds is a disqualification at common Office, 
law or by statute. 

35 Pari. Hist 1549. 



74 THB HOUSE OP COMMONS. [V. 

m 

Sheriffii Sheriffs appear to have been excluded generally by the 

(a) at Com- terms of the old form of writ, which directs that * neither you 

monlaw. , , , , , 

nor any other sheriff of our said kingdom be in anywise 

elected.' But the restriction was in practice confined to the 

county for which the sheriff held office, so that the sheriff of 

Hampshire was held eligible to sit for the borough of South- 

4 Douglas, ampton, which was a county of itself; it was extended by a 

resolution of the House, passed in the case of the borough 

of Thetford^, so as to exclude any officer of a borough to 

whom the writ or precept might be directed. 

The disqualification of the sheriff was narrowed by i6 & 17 

Vict. c. 68, s. I, by which writs for cities and boroughs are 

addressed, not to the sheriff of the county in which they aie 

situated, but directly to their returning officers, and one may say 

shortly that at Common Law no returning officer in England 

or Ireland may sit for the place where he is bidden to cause an 

3 & 3 election to be made, and that the same rule prevails in Soot- 

wiu. rv 

c. 65, 8. 36. land by force of a clause in the Scotch Reform Act of 1832. 

JudgM. The Judges of the three Common Law courts were held 

disqualified at common law, declared by a resolution of the 
House in 1605^ they being 'attendants as Judges in the 

^*39 Upper House.' But recent legislation has taken the place of 

c. 77, B. 5. this rule. 

(6) by The history of the statutory disqualifications is voluminous 

and intricate. They begin soon after the Revolution, when 
the strength and irresponsibility of the House of Commons 
made the Crown as anxious to obtain some influence over its 
members as the House was to exclude persons who held office 
at pleasure of the Crown. 

Commissioners of Stamps and of Excise were excluded by 
Acts of 1694 and 1699, and in 1700 came the sweeping pro- 
vision in the Act of Settlement that ' no person who has an 
office or a place of profit under the king shall be capable of 
serving as a member of the House of Commons.' 

Fortunately this clause in the Act of Settlement was repealed, 

^ 9 Com. Jonm. 725. 



Sect. L § 6.] WHO MAT BE CHOSEN. 75 

before it could take effect, by 4 Anne c. 8. Two years lat«r Office, 
was passed the statute which forms the groundwork of the 
present law upon the subject. 

6 Anne, c. 7 (41 in revised statutes), s. 24, enacts firstly that 
no one shall be capable of being elected who has accepted from 
the Crown any new office created since the 25th October, 1 705 ; 
secondly, that the holders of certain specified offices are in- 
capable of election ; and thirdly, it extends the incapacity to 
persons having pensions from the Crown during pleasure. 

S. 25 enacts that the acceptance of any office of profit under 
the Crown by a member of the House of Commons shall avoid 
his election, but that he may be re-elected. This section 
must be construed to refer to old offices, otherwise it would 
repeal a part of s. 24. 

S. 27 excepts from the operation of the statute commissions 
in the army and navy. 

Since the Act of Anne many statutes have been passed 
subjecting old or new offices to the total disqualification of 
section 24, or the partial disqualification of section 25* I have 
endeavoured to summarise the disqualifying statutes, and, up 
to a certain point, to divide them into groups, but, inasmuch 
as the extent of the disqualification and not the nature of 
the office is the matter which it is important to have in 
mind, I will confine myself in the text to a general statement 
of the law. 

(a) There are certain offices wholly incompatible with a seat (a) Offioes 
m the House of Commons. disqualify. 

Such are new offices under the Crown within the meaning 
of the Act of Anne. Under this head we must include all 
offices under the Crown created since 1705, and not specially 
exempted by statute. The Legislature has not been satisfied 
to leave new offices to the operation of the Act of Anne, but 
bas reimposed the disqualification in a great number of Acts 
of Parliament. A paid Charity Commissionership or a place 
on the Council of India, would afford an instance of such offices. ^ 

Such are also certain old offices which fall under the 



76 THE HOUSE OP COMMONS. [V. 

25tli section, and which by subsequent statutes have been 
made to cany with them a total instead of a partial disqualifi- 
cation. An instance of such an office would be the Master- 
ship of the Bolls, or the offices about court abolished in 

3aG«o.III, Burke's measure of economical reform with a provision that, if 
revived, they were to be regarded as new offices. 

Such, lastly, are offices not technically under the Crown, 
but made into statutory disqualifications. Instances of such 

27 & a8 offices would be that of a fifth Under Secretary of State, when 

Vict c 34 

12 & 13 ^^^^ Under Secretaries are already in the House, or a servant 
^ot. employed by the Collector of Bates for Dublin for the purposes 

of the Act which creates the office. 
(i9) Offices ()8) There are certain offices the acceptance of which, vacates 

wliich 

neoeuitate & ^^^^ ^^^ leaves the holder of the office re-eligible. 

re-election, g^^j^ are all o« offices, that is, offices in existence before 
the 25th of October, 1705, except those which have been made 
an absolute disqualification by subsequent statutes. And such 
are certain new offices created by statutes, which contain 
provisions that their acceptance shall vacate a seat, but that 

54 & 35> ^^ holder is re-eligible. An instance of such a provisaon is 

Vict • 

c. 70, 8. 4. ^ ^ found in the case of the President and one of the 

secretaries of the Local Government Board. 
(7) Offices (y) There are certain offices the acceptance of which, though 
not dia-^ they are concerned with the administration of departments of 
qualify. State, does not either disqualify from sitting, or necessitate 

re-election. 
30 k 31 Such are offices which are not considered to be held from 

^j^- or under the Crown, as the office of Under Secretary of State ^. 
Such, too, are the offices included in Schedule 4 of the 
Bepresentation of the BBople Act, if taken by a person who 
has been returned to Parliament since his acceptance of another 
office in the same schedule. He may then be transferred &om 
one to another of these offices without further re-election. 
^^kjfi -^^ such, too, are new offices specially fireed from di»» 

c 40 s ^8 ^^^^^7 ^7 statute, as commissions in the militia. 



1 



Hansard, dndv. 1337. 



■K-^ 1. . sf- 



Sect, I. § 7.] WHO MAT BE CHOSEN. 77 

In some cases the election is simply avoided. In others Effeoti of 
a heavy penalty is imposed in addition if the office-holder has cil^^ 
sat and voted. The law upon the subject is extremely intricate 
and perplexing ; it might well be reduced into the compass of 
a single statute, since the principles involved are very-simple, 
and would lose nothing if, with the cases to which they are 
applicable, they were crystallised in a code. 

It may be noted that the original ground for the disqualifi- Its pnotl- 
cation of permanent officials is no longer the actual ground. 
It is not because of any fear of the excessive influence of the 
Crown in Parliament that Charity Commissioners or Permanent 
Under Secretaries in the various departments of government are 
rendered incapable of sitting in the House of Commons. The 
need of securing the best men for the public service apart from 
political considerations, the converse need of a harmony between 
Hie head of a department and his subordinates, which could 
not exist if they were habitually opposed in debate, have come 
to be the acknowledged reasons for the exclusion of the various 
officials whom I have enumerated in a note. But these reasons, 
which make it desirable to exclude permanent members of the 
Civil Service from the House of Commons, do not apply to s. 25 
of the Act of Anne, which requires the re-election of the Par- 
liamentary heads of departments on their acceptance of office. 
The eBeet of this rule is now to create a needless and vexatious 
delay in the conduct of public business when a new ministry 
takes office, or a new member k introduced into a ministry. 

§ 7. Persons who hold pensions at the pleasure of the Crown Pemdons. 
are disqualified by 6 Anne, c. 7 [41], s. 24. This dis- 
qualification was extended by i Geo. I, st. 2, c. 56, to pen- 
donen of the Crowa for terms of years whether held in the 
name of the pensioner or by another in trust for him ; 
and pension is construed by 7,2 Geo. Ill, c. 82, s. 30, to 
mean a grant of royal bounty repeated more than once in 
three years. But civil service and diplomatic pensions are 
exempted from disqualification by Acts of the last and present 
reign, 32 & 33 Vict. c. 15 ; 32 & 33 Vict. c. 43, s. 17. 



Po*t, 

p. 149 



78 THE HOUSE OP COMMONS. [v. 

Goyem- § 8. A person who directly or indirectly, himself or through 

iraciM. the intervention of a trustee, holds or undertakes any contzact 
or commission for or on account of the public service is 
incapable of being elected : if elected, the election is void, and 
there is a penalty of £500 imposed for every day in which 
a person labouring under such a disability shall sit and vote. 

This disqualification is created by 2z Geo. Ill, c. 45 ; it is 
made applicable to contracts with the Irish government and 
generally to Irish members by 41 Geo. Ill, c. 5a, but does not 
extend to contributions or subscriptions to government loans. 

^eted § 9. A person attainted or adjudged guilty of treason or 
felony who has not received a pardon under the great seal, or 
served his term of punishment is incapable of election. 

MiteW. The common law on this subject is most clearly Ldd down 
m the case of John Mitehel, who, having been sentenced to 
transportation after conviction of treason-felony, escaped before 
his sentence had expired, and was subsequently elected for 
Tippemry. The House of Commons declared the seat vacant, 
there being no petition against his election. A new writ was 
issued, Mitehel stood again, was elected, and upon a petition 
being lodged against his return, the Court held that votes 

t>l%. ^^'^ ^ ^'"^ ^«» *h«>wn away, and that his opponent who 
claimed the seat was entitled to it. 

The ground on which the disqualification would seem to 
rest was that, as was argued by Sir John Holker in the 

M^t/" ^""'^ **' ^""^^'^^ '^'^ *^« «-« of John 

Mitehel a person convicted of treason or felony was not 

a ht and proper person' within the meaning of the old 
^^n held ihat one «, convicted, if he had servedtis Z 

to be inelilir ^1 T k/ ""'""^ ^""^"^ ^ ^ 

by 33 & 3tvict.^ .rs rn^r^'^"^ "* '* "^ 
'8pe«.hrfslTK »! ^' P™^<^& t»»at any pereon 



Sect, I. §§ 8-13.] WHO MAY BE CHOSEK. 79 

'hereaffcer convicted of treafion oi felony, for which he shall 
be sentenced to death, penal servitude, or any term of 
imprisonment with hard labour, or exeeeding twelve months, 
shall become and (until he shall have suffered the punishment 
to which he shall be sentenced, or such other punishment 
as may by competent authority be substituted for the same, 
or shall receive a free pardon £rom Her Majesty) shall continue 
thenceforth incapable of being selected, or sitting, or voting 
as a member of either House of Parliament/ 

§ lo. Bankruptcy is a disqualification for election, and should Bank- 
it befall a person already elected, it incapacitates him for 
sitting and voting. The disqualification can be removed by 
the annulment of adjudication in bankruptcy, or by a grant 
of discharge, accompanied by a certificate that the bankruptcy 
was not caosed by miscondnct 4*47 

In the case of a person abeady elected, his seat will fall o. 53, s. 33. 
vacant unless the disqualification be removed within six 
months of its occurrence. 

§ 1 1. One who is found guilty of corrupt practices at a Par- Corrnpt 
liamentaiy election within the meaning of 46 & 47 Vict. c. 5^9 
is for ever disqualified &om sitting for the place at which his 
offence was committed; and is disqualified for seven years 
&om sitting for any other place. 

If the corrupt practice was the unauthorised act of an agent 
employed for the general purposes of the election, the employer 
is disqualified for seven years from sitting for the place at 
which the offence was committed. 

§ 12. There is a form of disqualification which must be Failure to 
described as a religious disability, reduced in its extent ijie^^ioe. 
from time to time but still subsisting, arising from the 
requirement of an oath as a preliminary to sitting and 
voting in the House of Commons. I have elsewhere given 
a summary of the principal statutes relating to this subject ; p. 88. 
it is enough here to say that from the reig^ of William III 
to the year j 829 three oaths were required of all members, 
except such as might be Quakers — ^the oaths of allegiance, 



^^ THE HOUSE OP COMMONS. r 

of supremacy, of abjumtion. A feilaro to fa^t. -.u 

fi™t two was held to vacate the aeat Jth^ **^!!^*^«' «^ <*« 

•/f - *«,*^« tHe oath of .^:::^i ^txvh^ ^ 

statutes which imposed that oath .« ^^ ^ **' ^^ ^^^ 

vote under pen^^ ,f ^^^ ..J^-; --P«^ty to sit .^ 

fi^^atiuadebateorvot^iaadL^n oT""^** 
held entitled to affirm instead of ^^T ^^*" '^^^ 

P»^P. 88. of various statutes passed for their C^^tx ****^' ^^ '^'^^^ 

The form of" these oaths excluded Roman Catl.r . 
and ^rsons who objected to i^J^^^T "^'"^ 

grounds or were incapable of doin^ 1 T ^'^ '^^'^ 

hdief. mxless. Uke the Quake« 22 T '"^* °^ '^««- 

to^di^biht. under w;;:'thturb:^ ^ ^- *^e 

Jew.. The Jews were excluded by th^ * . 

abjuration which concluded wi^h fl ^ **** ***»^ o^ 
MUler,. &ith of a Christian.' These w«« k i7 '^^ **»« *"« 

itST I-t of the oath, and thL thl^h th ' 'l^^. "" "^^^ 
778. abjuration oath did not vaite 2 3^'^^^ ^ ^^ «»e 

and vote except under a ruinous penaT' "^"^^ ^*** »* 

« 4 33 To remedy this disabiUty an Aof »- 

«- witi «.. wort, .^^ wa^rs;^;"*"''-*' 

^>ot. V. 7,. ^^'J ^0™ of oath has been forther modiBed so thaf ,> 

-0^ be teken by any one who does not obTecr^l^"*^ 

Pnncple. who is loyal te the State and who C^ r^ol 

0«eralT;„!Si^*t^^"- >^' f '•* '^* '^ PWn." «*5d th. Solicitor 
**• *•• nothing in tli« o»th to exclude » NonconformMt. 



Sect I. §12.] WHO HAY BE CHOSEN. 81 

The right to aflBrm instead of making oath is by the same Qaakers. 
Acts given to Qiiakers, Moravians, Separatists, and every 
person who is by law permitted for the time being to make 
affirmation instead of taking an oath. But failure to take 
the oath or to make the affirmation (if the member so fiuling 
is entitled to affirm) carries with it the penalty which I have 
mentioned, and it is to the existence of this penalty and to 
actions brought in Courts of law to recover it, that we owe 
a clear knowledge of the law respecting this disability. For 
it must be borne in mind that a resolution of the House 
dealing with the interpretation of a statute does not give 
OS the law> but the opinion of the House upon the law. 

The House may by resolution allow a member to take his 
seat and to vote with or without affirmation or oath, and 
a Court of Law would not meddle with the interpretation 
by the House of a statute regulating its own procedure. 
But when the penalty is sued for in a Court of Law, that 
Court determines whether or no the penalty is due, and it 
is due if the terms of the Act imposing the penalty have 
not been oompUed with. 

So in Mr. Bradlaugh's case we get the law on this subject Atheists. 
by means of legal decisions in actions brought against him 
to recover penalties for sitting and voting when he had not 
taken the oath, or when he had gone through the form of 
taking the oath, though the words which make the difference 
between an oath and a promise meant nothing to him. 

In 1880 Mr. Bradlaugh, being duly elected for Northampton, 39'^ict. 
desired to make an affirmation in the form and manner pro- 31 & 32 
vided by the Parliamentary Oaths Act (1866) as modified by ^^ ' 
the Promissory Oaths Act (1868). After discussions in the 
House, with which we are not here concerned, Mr. Bradlaugh 
was allowed to affirm, and an action was brought against him 
for penalties accrued by reason of his having sat and voted 
without taking the oath. The Queen's Bench Division and 
the Court of Appeal held that Mr. Bradlaugh was not entitled 

' Haiuard, 3rd Ser. voLl 1 3. See Debates of July 26 and 30, and Aug. 5, 1850. 

G 



82 THE HOUSE OF COMMONS. [V. 

Limits of to make affirmation in lien of the oath. His contention was 
i^rm. that, as he would have been allowed nnder the Evidence 
3^.^33 Amendment Acts of 1 869-1870 to make a simple promise 

"Vict c 68 

& 34 ^ ^^ ^^6 tmth if he had appeared as a witness in a coort 
Vict. o. 49. of justice, on the ground that an oath was not binding on his 
conscience, he was a ' person for the time being permitted to 
make a solemn affirmation or declaration instead of taking an 
oath,' within the meaning of the Parliamentary Oaths Act 
29 Yiot. 1 866. But the Courts held that the words of the Act of 1866 
^' '^ ' contemplate the present existence and the coming into exis- 
tence of classes of persons who on all occasions are permitted to 
Per Bram- make a solemn declaration instead of taking: an oath,' whereas 

well L.J. 

_ ' ' ' the Evidence Amendment Acts dealt merely with such occasions 

Bradlaagh, as might anse in courts of justice when witnesses declared them- 

^g; ' * selves to attach no religious significance to the form of an oath. 

The House of Lords, without touching this part of the 

decision, held that the penalties sued for were not recoverable 

by a common informer; but although the plaintiff thus 

failed in his case we may take the decision of the Court 

of Appeal to be conclusive as to the limitations of the right 

to make affirmation instead of taking the oath. 

Meantime the House had resolved that Mr. Bradlaugh, for 
want of religious belief, was not capable of taking the oath, 
^'i^Bsett *^^ *^® Queen's Bench Division refused to make a declaration 
la Q.B. D. to the effect that he was entitled to take it. 

But a further complication arose, leading to a judicial statement 
of the law, which throws a somewhat startling light on the ex« 
tent of the disability arising from the absence of religious belief. 
Limits of On the I ith of February, 1884, Mr. Bradlaugh entered the 
■worn. House ; advanced to the table without being called upon by 
the Speaker ; read from a paper in his hand the words of the 
oath, and having kissed a book which he brought with him, 
signed the paper and left it upon the table. He subsequently 
voted in a division, and an action was brought against him, 
this time at the suit of the Crown, for the penalty which he 
had incurred by so voting. 

The Court of Appeal has held, not merely that to take the 



Sect. I. § 12.] WHO MAT BE CHOSEN. 83 

oatb in the way in which Mr. Bradlaugh took it was not to 
sfttiBfy the requirements of the Parliamentary Oaths Act, bat 
ihat even if he had taken the oath in due form the penalty 
would be recoverable if it were afterwards proved to the 
satis&ction of a jory that for want of religions belief at the 
time of his taking the oath it had no binding effect npon 
him, except as a solemn promise. * Suppose/ said Brett M. B., 
^nothing has ever been said by the defendant in Parliament 
at all ; yet, if from what he has said or done outside Parliament 
before he was elected or after, a jury are entitled to find that 
when he sat and voted, although he had gone through all the 
formgy he had this state of mind, I am of opinion that the Attorney 
penalty will accrue, because he would not have taken an oath, BriM^ugh. 
and had not taken it because he could not/ '4 Q- B- ^^ 

lOI. 

The judgment really comes to this — that there is a penalty 
recoverable fix)m eveiy member of whom a jury can be found 
to say that when he took the oath he had no religious belief, 
of ^£^500 for every time he has sat in a debate or voted in a 
division. Unless, therefore, a member is prepared to prove his 
religious belief to the satis&ction of a jury, he practically holds 
his seat upon the sufferance of the legal advisers to the Crown ^. 

There are certain disqualifications which have ceased to Extinct 
exist, but which, as part of the histoiy of our representative q^odb! 
system^ it may be well to notice here. 

Residence in their constituencies was required of the Residence, 
knights and burgesses who represented shires and towns by 
I Henry Y, c. i. This requirement had fallen out of use 
as early as the reign of Queen Elizabeth^ but the Act of 
Henry V, was not repealed tiU 1774. c.^^**"'"^' 

A property qualification was created by 9 Anne, c. 5« con- Property, 
sisting of an estate in land which, in the case of a knight of 

* On Jftniuury 13, 1886, Mr. BradlAUgh took the oath among other members 
elected to the new Parliament. The Speaker aononnced that he should not 
interrene, holding that the reeolntionB of the former Parliament had lapsed 
with its dissolution ; that the Speaker had no original authority to prevent a 
jnember from taking the oath ; and that he should not permit (as the former 
Speaker had permitted) a motion to be made intervening between a member 
Mid Yam taking the oath — 'The hon. member takes that oath imier wkat0oer- 
may attach to him in a court of law,^ 

Q 2 



Bible. 



84 THB HOUSB OF COMMONS, [v. 

the flhiie, must be worth ^600 a year, in the case of a 
burgess jf 300 a year; and this qnalification had to be affirmed 
upon oath, and later by declaration made by the candidate 
npon the request of two electors, or of a rival candidate, at 
any time before the day fixed in the writ of summons for the 
meeting of Parliament. 

ai & aa This Act was modified by some subsequent statutes, but all the 

' provisions relating to the qualification were repealed in 1858. 

Profession An Act of 137a provides that * no man of the law following 
business in the Eling's Court, nor any sheriff for the time 
that he is a sheriff, be returned nor accepted knight of the 

34 & 35 shire.' This statute was not repealed until 187 1, though its 

Vict. CO. , 1 <• 

provisions had long been forgotten, 
^^esigi^ But apart from the disqualifications which I have described 

tion of a ,7 

seat impos- as avoiding an election, a member once elected can only cease 
to represent his constituency by reason of his death, or of the 
dissolution of Parliament. A seat cannot be resigned, nor can 
a man who has once formally taken his seat for one constitu- 
ency throw it up and contest another. Either a disqualifica- 
tion must be incurred, or the House must dedaie the seat 
vacant ; and, as we have seen, the House has not shown itself 
very willing to declare a seat vacant on the ground of physical 
incapacity, or personal unwillingness to serve. 

The disability attaching to office is thus of great practical 
convenience. Certain old offices of nominal value in the gift 
of the Treasury are now granted, as of course^, to members who 
wish to resign their seats in order to be quit of Parliamentaiy 
duties or to contest another constituency. These offices are 
the stewardship of the Chiltern Hundreds, of the manors of 
East Hendred, Northstead, or Hempholme, and the escheator- 
ship of Munster. The office is resigned as soon as it has 
operated to vacate the seat and sever the tie between the 
member and his constituents. 

1 In the Mgbteentli oentary they were refused in the interest of the Govem- 
ment^ and presamably might be refosed now if demanded for a discreditable 
purpose^ as to avoid expidsion. 



Sect-I.] OFFICIAL DISQUALIFICATIONS. 85 



NOTE I. 

OpnCIAL BlSQlTAIiIFICAlIOirS CBJBATBI) BT STATUTE ^« 

i. Persons eaneemed with the Administratum cf Justice. 

1. Judges of the High Court and Court of Appeal in England. 

(38 & 39 Vict c. 77, B. 5.) 

2. Registrars or other officers connected with any Court having 

jurisdiction in Bankruptcy in England. (46 & 47 Vict, 
c. 5a, s. 116.) 

3. County Court judges in England, (ag ft 26 Vict. c. 99, 

s. 4.) 

4. Commissioners of Metropolitan Police. (19 ft 20 Vicf. c. 2, 

S.9.) 

5. Stipendiary magistrates for various towns are disqualified in 

the Acts which provide for their appointment. 

6. A Becorder for his borough in England. (45 ft 46 Vict. c. 50, 

8- 163.) 

7. A Revising Barrister is disqualified for the county, cities, and 

boroughs comprised in [his district. The disqualification 
lasts during his term of office and for eighteen months 
after. (6 ft 7 Vict. c. 18, s. a8.) 

8. A Corrupt Practices Commissioner, (ig ft 16 Vict, c 57, s. i.) 

9. A barrister appointed to try municipal election petitions. 

(45 & 4^ Vict. c. 50, s. 9a.) 
I o. Judges of Court of Session, justiciary or baron of the Exchequer 
in Scotland. (7 Ceo. II, c. 16, s. 4.) 

1 1. Sheriff depute in Scotland, (ai Geo. 11, c. 19, s. 11.) 

12. Judges of the High Court and Court of Appeal in Ireland, 

including the Chancellor. (40 ft 41 Vict. c. 57, s. 13.) 

13. Masters in Chancery in Ireland. (21 Qeo. IT, 0. 19, s. 11 ; 

I ft a Geo. IV,' c. 44, a i.) 

^ ^e foUawing ■ommary contains only snch offioes m disqualify absolutely 
either lor certain constituencies or for all. I haye not thooght it necessary 
to set out a list of offices which entail a re-eleotion. 

' Tins statute disqualifies the judges of the old Common Law and Chancery 
Courts in Ireland, and by subsequent Acts the judges in the Irish Courts 
of Admiralty, Probate, and Bankruptcy were also disqualified, lliese pro- 
Tidcos, except in so &r as Tested interests are concerned, are merged in the 
general disqualifying clause of the Irish Judicature Act. 



86 THE HOUSE OF COMMONS. [v. 

14. Judge of Landed Estates Conrt, Ireland. (21 k 22 Yict.c. 72, 

8.7.) 

15. Assistant barristers in Ireland. (14 & 15 Vict. c. 57, s. 2.) 

16. Justices and police officers in Dublin. (6 & 7 Will. IV, c. 29, 

s. 19.) 

17. Magistrates and inspectors of constabulary, Ireland, appointed 

under tbe provisions of 6 & 7 WiU. lY, c. 13, s. 18 ; 48 
Geo. Ill, c. 140, B. 14. 

18. A Recorder for his borough, in Ireland. (3 & 4 Vict. c. 108, 

B. 166.) 

19. A member of, or person holding office under, the Irish Land 

Commission. (44 & 45 Vict. c. 49, s. 54.) 

20. Registrar of deeds, Ireland. (2*3 Will. IV, c. 87. s. 36.) 



ii. Persons represenUnff the Craton or holding Officer at Court or 
under the chiefs- of the great Departments of State. 

1. Colonial govemors and deputy goyemors. (6 Anne, c. 7 [41] 

s. 24. 

2. The goyemors or deputy goyemors of any of the settlements, 

presidencies, territories, or plantations of the East India 
Company. (lo Gko. IV, c. 62, s. i. This Act would 
appear to be continued 'mutatis mutandis' by the 'Act 
for the better Gbyemment of India' 21 & 22 Vict. c. 106, 
8. 64.) 

3. Members of the Council of India. (21 & 22 Vict. c. 106. s. 12.) 

4. A number of court places were abolished in 1782, and it was 

provided that, if reyiyed, they should be new offices within 
the meaning of the Act of Anne. (22 Qeo. LEI, c 82, 

§§ h ».) 

5. Deputies or clerks in the departments of the Treasury, Ex- 

chequer, Admiralty, of the principal Secretaries of State, and 
a number of other Government offices. (15 Geo. II, c. 22 ; 
41 Geo. Ill, c. 52, s. 4.) 

6. Fifth Under-Secretary of State while there are four in the House. 

(21 & 22 Vict. c. 106, s. 4 ; 27 & 28 Vict. c. 34.) 

7. Commissioners of Public Works, Ireland, (i & 2 Will. IV, 

c. 33i B. 15) 



Sect. I.] OFPICIAL DISQUALIFICATIONS. 87 

iii. Persons concerned mtA tie Collection of Revenue^ or Audit 

ofPMic Accounts. 

1. Farmers, collectors, and managers of money duties or other 

aid. (5 Will. & Mary, c. 7, s. 59.) 

2. Farmers, managers, and collectors of customs. (12 & 13 Will. 

m, CIO, §§87, 88.) 

3. ConmiisBioners and officers of excise in England and Ireland. 

(7 & 8 Geo. IV, c. 53, 8. 8.) 

4. Auditor of the Civil List. (56 Qeo. Ill, c. 46, s. 8.) 

5. Comptroller and Auditor-general, and assistant. (29 & 30 Vict. 

c- 39> s. 3.) 

6. Collector-Qeneral of rates for Dublin, or any officer or servant in 

bis employment for purposes of the Act. (12 & 13 Vict. 
c. 91, 8. 24.) 

iv. Persons concerned vnth the Administration qf Property 

for Public Objects. 

1. The Commissioners of Woods and Forests. (14 & 15 Vict. 

c. 42, s. 10.) 

2. The Charity Commissioners (paid), their secretary and in- 

spectors. (16 & 17 Vict, c 117, B. II.) 

3. The Irish Church Temporalities Commissioners. (32 & 33 

Vict. c. 42, s. 9.) 

4. The Land Commissioners. (465 Vict. c. 35, s. 5. The 

Land Commissioners now represent in respect of duties 
and of disabilities the Tithe Enclosure and Copyhold 
Commissioners. 45 & 46 Vict. c. 38, s. 48.) 

v. Miscellaneous disqtuilifying enactments, 

6 Anne, c. 7 [41^9 s. 24, includes commissioners or subcommis- 
sioners of prizes, comptrollers of the accounts of the army, 
agents for regiments, commissioners for wine licences and 
other incongruous offices. 

57 Geo. m, c. 62 abolishes a number of Irish offices making pro- 
vision for a new regulation of their duties and for the 
disqualification of persons holding any offices created in 
consequence of such regulation. 



i^mtm^m^it'^^'^^^f^r^^^-'^ ■> \i,m^* ^ -- - -, --3-,-— 



88 THE HOUSS OF CX)MMONS« [V. 

NOTE n. 

SUMMABT 07 FBINCIPAL StATUTBS CONCEBNUra THE 

Fabliahsstaby Oath. 

Oath of supremacy required to be taken before the Lord Steward 
bj knights and burgesses. (5 Elis. c. i, s. 16.) 

Oath of allegiance by the same persons in the same manner. 
(7 Jac. I, c. 6, s. 8.) 

Oaths of allegiance and supremacy to be taken and subscribed by 
Lords and Commons in Parliament. (30 Car. II, c. i.) 

The form of these oaths altered, (i Will. A Mary, c. 8.) 

Oath of abjuration required of Lords and Commons as a condition 
precedent to sittingand voting, this oath containing the words 
' on the true faith of a Christian.' (13 Will. Ill, c. 6.) 

The form of oath altered in some respects, but the concluding 
words of the abjuration oath retained and penalty imposed 
(£500.) (i Geo. I, c 6, 8. 16.) 

Forms of affirmation provided for Quakers. (8 Qeo. I, c. 6, 
amending or embodying earlier provisions in their &vour. 
a 2 Qeo. n, c. 46.) 

Oath suited to Boman Catholics provided by Boman Catholic 
Belief Act. (10 Geo. IV, 0. 7, s. a.) 

Quakers and Moravians allowed to affirm. (3 & 4 Will. IV, c. 49.) 

Ex-Quakers, ex-Moravians, and Separatists allowed to affirm, 
(i & a Vict c. 77.) 

A single oath substituted for the oaths of allegianoe, supremacy, 
and abjuration, (ai & aa Vict. 0. 48.) 

Power given to either House by resolution in case of individual 
members of Jewish religion to omit the words * upon the 
true faith of a Christian.* (ai & a a Vict. c. 49.) 

Power given to the House of Commons to make Standing Order to 
the same effect. (33 & a4 Vict. c. 63.) 

Form of oath prescribed omitting these words, and also form of 
affirmation to be taken by every person ' for the time being 
by law permitted to make a solemn affirmation or de- 
claration instead of taking an oath.' (a9 Vict. c. 19, 
ss. I, 4.) 

Promissory Oaths Act shortens the previous form. (31 & 3a Vici 
c. 7a.) 



Sect. II.] WHO MAT CHOOSE. 89 



SscrnoK II. 
Who mat choose. 

The right to vote for membeis to serve in the Hoase of The Fran- 
Commons is called the Franchise. The term Franchise is used 
indifferenilj for the right to vote and the qualification which 
confers the right. Strictly its meaning should be confined to 
the right, but in any case it is used in a sense quite distinct firom 
that in which it signifies an incorporeal hereditament, and is 
defined by BlacVstone as ' a royal privilege or branch of the 
Crown's prerogative subsisting in the hands of the subject^.' 
The possession of this franchise now depends, except in some 
few surviving instances, upon certain qualifications of property 
or residence, and until very recently the qualification which 
gave the right to choose a member for a county difiered from 
that which gave the right to choose a member for a borough. 

The link between the borough and county representation is Ancient 
to be found in the writ addressed to the sheriff commanding Zeroise/ 
him to cause the election of two knights of his shire, together 
with two citizens of each city, and two burgesses of each 
borough, within the shire. The election took place ^ in pleno 
comitatu,' and firom the year 1406 onwards at the next 
meeting of the county court after the writ was received. So 
soon as the writ was received from the o£Eice of the Crown in 
Chancery, the sheriff issued his precept to the returning 
ofiScers of the cities and boroughs, and annoimced the holding 
of a special county court for the purpose of the election. The 
towns made their election in accordance with the custom and 
procedure which had settled the franchise in each borough. 
The county court, when it met, was adjourned from day to 
day during such time as the poll might legally be kept 
open. At the close of the poll for the county election the 
result of that election was declared, and the knights of the 

^ Stephen's Commentaries, i. 661. 



90 THE HOUSE OF COMMONS. [v. 

A mediae- shiie were girt with swords in oompliance with the terms of 
^^Q ^' the writ. By this time the retnms to the precepts had oome 
in from the towns, the notification of their choice was made, 
and the formal election took place accordingly. 
7 Hen. IT, By the Act of 1406 the sheriff was required to retom the 
^' '^' writ to Chancery, and not, as heretofore, to the Parliament, 
and he was further required to append to the writ indentures 
in which the names of the persons chosen were to be written 
Ante,p,$4. 'under the seals of them that did choose them.' These in- 
dentures ensured that the persons returned were the persons 
23Hen.Vl, elected by the county, and were not the arbitrary choice of the 
^' '^* sheriff. A like precaution was taken in 1444 in respect of the 
towns. 

So afber the declaration of the poll for the county election, 
a certain number of the electors present set their hands and 
seals to the indentures containing the names of those elected, 
and these, fastened to the writ, were returned, together with 
the precepts and indentures relating to the towns, to the 
Clerk of the Crown in Chancery. 
16 & 17 Such was the form of a Parliamentary election down to 1853, 

Viet 

c. 68^ 1. 1, when it was enacted that the writs for cities and boroughs 
should be sent direct to the returning officers of those places, 
and should no longer pass through the hands of the sheriff. 

This outline of the procedure of an election may serve to 
show that county and borough members were held together 
not merely by the interests which they had in common against 
the Crown and the magnates, nor by the representative 
character which they alike possessed, but also by the fact that 
they were all returned to Parliament through the same local 
machinery, that of the county court. 

And from this procediue one may also understand how it 
was that, before the Reform Act of 1832, the county franchise 
was simple and uniform, the borough franchise complicated 
and various, that it was to the county elections that one 
looked for a genuine expression of political opinion, when the 
electoral rights of a large number of the boroughs had become 



S^. II.] WHO MAY CHOOSE. 91 

pieces of private property, so that a man might, by purchase 
or inheritance, acquire the right of retoming one or more 
members to Parliament. Bnt I am not here concerned with 
the present mode of conducting an election. It is necessary 
first to ascertain who may choose members to serve Parliament, 
or what constitutes the qualification of an elector. How the 
electors may choose, in what constituencies and by what pro- 
cess, will form matter for a separate section. 

The Franchise now rests mainly, though not entirely, upon The 
the Act of 1884 ; but since this Act comprehends various older Franehiee. 
Statutes and requires to be read in connection with them, and 
leaves in existence various ancient and modem firanchises to 
which it makes no reference, we must inquire what electoral 
rights have been, as well as what they are. 

The three grounds on which a man may nowadays rest his 

right to vote, are Property, Occupation, Residence ; that is to 

say, under various conditions, to be dealt with hereafter, he has 

a Tote in respect of a tenement which he owns, which he uses, 

or which is his dwelling. But it is certain that when our 

representative system began, the right to vote was conditional 

upon residence : for it was coincident in the counties with the 

right to attend the County Court ^, and amid the obscurity 

which rests on the early history of the borough franchise it seems 

clear that whether the right to vote depended on the holding 

of land or on contribution to local burdens, residence was in 

either case required, or perhaps it might be more true to say 

that non-residence was not contemplated. The Act i Henry V, 

CI, required residence of electors as well as of members ; the 

&ct that it had fallen out of use long before it was repealed 

in 1 774 is only an illustration of the tangled growth of our 

representative system before 1832. But what I have to say 

on this part of the subject may be conveniently divided as 

follows: — 

* Stabfai, Conet. Hist. ii. 305, aa to oonstitiition of ooontj court. 



da 



THE HOtJJlB 09 COMMONS, 



[v. 



DiyisioDfl 
of nibjeot. 



before 1884. 



The saitor 
at the 
County 
Court. 



1. The English county franchise, 

2. The English borough franchise, 

3. The Scotch franchise, 

4. The Irish franchise, 

5. The effect of 48 Vict. c. 3. 

6. Disqualifications and incapacities. 

§ I. EnglUh County Fraiiehue before 1884. 

I will take first the modifications of the county fran- 
chise before 1884. The right to vote for the representative 
knights of the shire was vested originally in those who were 
entitled to attend the county court. But when the county 
court had lost much of the business which gave it importance, 
the attendance was apt not to be representative. The next 
meeting of the county court might fall too soon after the 
receipt of the writ by the sheriff for a full meeting to be 
' summoned, and so it might happen that the election would 
fall into the hands of the sheriff, or of a few interested persons 
or of a disorderly crowd. 
8 HexL VI, In the year 1430 was passed the Act which determined the 
°* ^' county franchise for 400 years, limiting its exercise to residents 

The forty possessing a freehold worth forty shillings a year. The sheriff 
^h^er. '^'^^ empowered to examine voters upon oath as to their quali- 
fication, and an Act of 143^ required that the freehold should 
be situate, and the voter resident in the county for which the 
vote was claimed. This last requirement fell into disuse, and 
was abolished by 14 George III, c. 68. 

The Act of Henry VI was not, as it has been sometimes 
described, an aristocratic revolution. It was designed to 
secure orderly elections, and to impose a qualification which 
should exclude the casual crowd attending the county court. 
At any rate it does not seem to have altered the character of 
the representation in the medisBval Parliaments ^ ; the forty- 
shilling freeholder chose the same class of representative as the 
suitors at the county court had chosen. But the forty-shilling 

^ Stnbbs, Const. Hist. iii. iii. 



Sect. II. § I.] WHO MAT CHOOSE. 93 

freehold is now only one of seyeral property qnalifications The quali- 
restricted to comities and to towns which are counties cor- property, 
poiate; and the reforms of 183:1 and 1867 introduced other 
qnalifications confined to counties and depending not upon 
property but upon occupation. 

First as to Property. The Reform Act of 1832 confined Act of 

the effect of the forty-shilling freehold qualification to cases in 

which the property was in occupation of the voter ; or where 

it was an estate of inheritance ; or, if a life estate and not 

in occupation, then where it had been acquired by marriage, 

niarriage-settlement, devise or promotion to a benefice or office. 

Besides its acceptance of the ancient freehold qualification 

in this limited form, the Reform Act introduced four other 

property and non-residential qualifications into counties. 

These were (a) fi:eehold for life not occupied, nor acquired as 

described, of the dear yearly value of j^'io ; (b) copyhold or 

land held on any other tenure but freehold of the same value ; 

(c) leasehold of the same value and for a term originally created 

for not less than sixty years ; and (d) leasehold of si 50 clear 

yearly value, and for a term originally created for not less than 

twenty years. 

The Representation of the People Act of 1867 reduced the Act of 
value required for the first of these three franchises to j£^5 ; the 
Act of 1 884 leaves them alone. I will return to them presently 
when I come to summarise the qualifications now existing. 

Next as to Occupation. Besides the property qualifications ByOocnpa- 
just mentioned, the Reform Act created an Occupation franchise 
in counties for the occupier ' as tenant of any lands or tene- 
ments for which he should be liable to the clear yearly rent Act of 

Alongside of this was created a new occupation franchise in Act of 
counties by the Act of 1867. This depended not upon rental ' '' 
bat upon rating, and the qualifying land or tenement had to 
be of the rateable value oi£i%. The holding must have been 
rated, and the occupier must have paid his rates. 

Such was the county franchise before the Act of 1884* 



M TBI HODSl or OOUtOKS. [t. 

§ 2. SMfliMi Bmagi Fmekm h^m 1884. 

The condition of lie boroogi btanhx before 1832 exhibits 

« cnrioufl medley of p(Jiticd rightB. For Uie bOToaghs wtre 

left, fne &om all If^iahttTe interfereDce u to tJie mode in 

which they BhoaH elect thar representatim : dl thmt was 

R<)aii«d WIS that the ptfBoiu retorned dioold be the persons 

i«ll.v AoKo, and that thf^ ahonid be fiiDy empowered to 

L Wad lieir tonrtitnento. To this end an Act of 1444 required 

liiai U,e«tDrain«lebTthemayOT,orbaiIiffof»heboron^ 

w liy AtnSTt prewpt, flhonH be aooompanied with indenture 

i£n.n»r » ihMe wiidi aooompanied the letorn of the county 

^i^^^ mir oate the smIs of thoae that dioee the member. 

Jl* -M iwwisfe WW ihos left t» choose their own mode of 

•Bid wUdi it is not e»y to ftame any 

^ jji of ekdcol tighta Nevoiheleas, 

a ih^nh«, <Bd ecmbined with one 

(^ ^[fc of gsMhise a^xar distanct 

■ Uiu This was |ffobahlf 
mm leinnttd the right of 
(mkMd hTtbehal^of 
iiiiBT tf Aea&in of the 





Sect. II. § a.] WHO MAY CHOOSE. 95 

the obligations laid upon land, nor contribute in his character 
of freeman to the local charges. 

The fonrth qualification was corporate office, a narrower form Corporate 
of the right arising £rom incorporation. This was the latest of 
the qualifications, and it vested in the official member of the 
chartered town the right to return representatives to Parlia- 
ment. It will be found that in all the cases in which the %kn« 
chise was thus limited, the town in question was either chartered 
or summoned in the reigns of the Tudors, or the limitation fixed 
hj a resolution of the House of Commons, subsequent to the 
Besteration, based upon an interpretation of the charter. In 
the case of such a resolution, the inhabitante sometimes urgently 
contested the right with the corporation, as in the case of Bath, 
Malmesbuiy, and Salisbury ^. Sometimes, as in the case of 
Wilton and Winchester, they acquiesced without a struggle. 

But each of l^ese kinds of qualification admitted of many Varieties 
varieties. The qualification by tenure in some towns, which cation by 
were also counties, as Nottingham and Bristol, was the forty *®^^®' 
shilling freehold, in others it was land held on burgage 
tenure ; in some cases it was Umited to particular tenemente, 
88 at Richmond, where they only might vote who held burgage 
tenements carrying with them the right to have pasture on a 
certain common field. At Cricklade the qualification was not 
only freehold, but copyhold of lands held within the borough ; 
or leasehold of a term of not less than three years. At Clitheroe, 
the franchise was in the owners of burgage tenements though 
non-resident ; but if they did not choose to exercise their rights, 
tihen the occupiers of the tenemente became entitled to vote. 

The qualification by residence extended, at Preston, to all Varieties 
the inhabitents ; at Taunton to those who had a parochial cation by 
settlement and were self-supporting, the *potwallers' who"^*^®^®®' 
boiled their own pot : in a great majority of cases it was a 
necessary feature of the qualification that the voter should be 

' I hMVB taken thete and the following facts as to particular boroughs from 
01cifi«ld*s biitoTj of repreeentatiTe government, checking his statements by 
relereDoe to the Commons' Journals. 



^ I 



96 



THE HOUSE OF COMMONS. 



[V. 



Varieties 
in qualifi- 
cation of 
freeman. 



Com- 
plexity of 
borough 
franohise. 



a householder and contribate to local rates and taxee, 'soot 
and lot' ; bat it would seem that in some cases the contribu- 
tion to local burdens, coupled with residence, might give 
a vote to one who was not a householder. 

The qualification of the freeman might be acquired in various 
ways, — by birth, by marriage with the daughter or widow of 
a fiseman, by apprenticeship or servitude, by purchase, or by 
gift. The mode of acquisition was different in different towns, 
and where it lay in the power of the Corporation to give the 
freedom to whom it pleased, the creation of freemen for 
election purposes was unlimited^. In some boroughs the 
freemen were required to be resident in order to obtain tiie 
franchise ; in others they were scattered over the country. In 
tiie first case they were usually corruptible on the spot, in the 
second the cost of carriage was added to the cost of the vote. 

• 

Where the right to return members lay with the officers of 
the Corporation, the constituency would depend on the com- 
position of the Governing Body created by the charter. 

From what has been said it will be seen that neither tiie 
condition of the borough franchise in the middle ages, nor the 
mode of its exercise, is very easy to determine. When the 
House of Commons began to determine disputed returns, we 
get such knowledge of the franchise in the seventeenth 
century as makes it clear that it could never have been 
uniform ; and such accounts as we have of mediseval elections ' 
seem to show that the whole body of electors not unfrequently 
entrusted the choice of their representative to a committee, 
sometimes consisting of the municipal officers, sometimeB 
selected from them or from the whole electorate, or from both. 

As we approach the time when political interest grows 
stronger, and a seat in Parliament becomes a thing to be 
desired, we find three influences acting upon the condition of 
the franchise, all tending indirectly to narrow, to confuse, and 
to corrupt the right of voting in the towns. 

* Mnnioipal Corporationg Commiasionen* Keport; i. 35. 
' Stabbiy Const. Hist. iil. 415-419. 



Sect.n.§3.] WHO MAY CHOOSE, 97 

First, we may put the increase of charters of incorporation Efieot of 
gmted to towns from the time of Henry VI onward. From ^^^^ 
this period the object of such charters was not so mnch to ^^ * 
confer new priyileges as to define the rights of the townsmen 
kier 9e, and to organise the corporate government. The pro- 
oefls by which the merchant guild of a town became identified 
with the older town community is part of municipal history 
with which we are not here concerned, except in so far as the 
Ptriiamentary franchise came thereby to be vested, either 
exdnsively or jointly with other voters, in the freemen of 
a corporate town. 

Bat it is to this influence that we must attribute 
the acquisition by the official members of the corporation 
of the exclusive right to elect the representatives of the 
borougL In some cases this was directly conferred by 
charter, in others it was assiuned by the governing body 
of the corporation, but here too the claim was rested upon 
the charter and admitted by committees of the House of 
Commons. 

Next, we must put the grant, either by summons or by of the 
charter followed by summons, of the right of representation i>oro^lui : 
to towns which were never meant to represent anything but 
the influence of the crown in Parliament. Thus, at the 
commencement of the Tudor additions to the representation, 
six Cornish boroughs returned twelve members, at their 
conclusion twenty-one Cornish boroughs returned forty-two 
members. In the majority of these towns the franchise 
was vested in the corporation, and they would indirectly 
afiect the condition of the franchise elsewhere, in so far as 
they would offer analogies and precedents for other cases in 
which rights of election were in issue, to election committees 
of ibe House of Commons ; and such precedents would operate 
with the more force, because some of those who judged of 
the letoms themselves owed their seats to this corrupt and 
nstricted franchise. 

And this brings me to the third influence exercised upon 



98 THE HOUSE OP COMMONS. [v. 

of deoisioiiB elections by the decision of disputed returns in election com- 
CommonB. mittees of the House of Commons. The history of this privilege 
See post, of the House and the mode of its exercise are described else- 
where ; and here we need only note the effect upon electoral 
rights, in the different boroughs where they were called in 
question, of decisions formed by a body unsuited for judicial 
work, often animated by partisan or personal feelings, and in- 
clined from self-interest to narrow the franchise. When onoe 
they had declared an election to be invalid on the ground that 
the votes of a particular class of voters had been accepted or 
rejected, the right of that class was settled and the custom of 
2 Geo. II, the borough fixed ; and in 1729 it was enacted that * the last 
' determination in the House of Commons' should settle the 
legality of votes. It is not necessary, nor would it be desir- 
able here, to discuss the merits and demerits of the borough 
franchise such as it had become by the year 1832. It had 
developed absolutely free &om legislative interference. Except 
in the case of boroughs which had been convicted of notorious 
corruption, and whose right to return representatives had 
been extended by Act of Parliament to the freeholders of the 
adjacent hundreds, custom and common law, interpreted by 
the resolutions of Parliamentary committees, alone determined 
the right to vote. 

That the representation was inadequate and corrupt there 
can be no doubt. When the qualification depended on tenure 
it would often happen that the qualifying tenements were 
very few in proportion to the population, or sometimes that 
the population had entirely disappeared, leaving the con- 
stituency to consist in the owner or owners of a few plots of 
land. Where the qualification was residence, or fireedom, 
bribery was largely practised, and, where the fireedom was in 
the gift of the corporation, freemen were created in great 
numbers to turn an election. It is hardly necessary to note 
the illusory character of a franchise vested in the officials of 
a corporation ; one can only wonder that the mere absurdity of 
the representation of a town like Bath by members chosen by 



Sect.n.§2.] WHO MAY CHOOSE. 99 

a body of twenty-four officials of the corporation should not 
bave condemned a system which in the unchecked growth of 
oentmies had assumed a form so grotesque. 

He Reform Act of 183a made a clean sweep of these Reform 
anomalies. It preserved all individual electoral rights vested 
at the date of the passing of the Act : but beyond this it 
abolished the old franchises with two exceptions. It re- Betention 
tained the forty-shilling freehold qualification in towns ^ ^ ' 
which were counties, subject to the limitations imposed on 
the like qualification in counties. It further retained the 
qualification by reason of being a freeman of a chartered town 
in those towns wherein the qualification had heretofore pre- 
vailed, but it limited the modes of acquiring freedom, for this 
purpose, to birth and servitude, and made residence in or 
within seven miles of the city or borough a part of the 
qualification. 

Apart from these survivals of the old qualifications, the right creation of 
iio vote in cities and boroughs was made to rest uniformly ficationB. 
upon Occupation. By s. ^7 a qualification is given to the oc- 
cupier, as owner or tenant, of any house, warehouse, counting 
house, shop, or other building which either separately or a & 3 

• . • * .^ "Will IV 

jointly with other land occupied by him in the same city or <.. 45^ g. Jy. 
borough is of the dear yearly value of J^io. The occupier 
muEt have been rated in respect of his tenement, must have 
paid his rates, and must have resided, during six months 
before his r^^tration as a voter, in or within seven miles of 
the place for which he claims to vote. Sy an Act of 1 878 the 41 ^ 4> 
qualification extends to any part of a house separately occupied ■.5.' 
under the above conditions. 

Such was the borough franchise from 1832 to 1867. The 
Bepreflentation of the People Act introduced the Household 
and the Liodger franchise. 

To be entitled to the Household franchise a man must Reddenoe. 
oocnpy as owner or tenant, for twelve calendar months before 

H % 



100 THE HOUSE OF COMMONS. [v. 

The house- the 3 1st of July in the year in which he claims to be registered, 
a dwelling-hoose in the borough. He most have been rated 
to the poor-rate, and have paid by the aoth of July so much 
rate as had accrued up to the preceding 5th of January. 

There are two points here to be noted, and it is important 
to note them, because the Act of 1884 has not altered bat 
has only extended this franchise. 

Definition (a) The word ' dwelling-house ' was defined in the Act of 

hoase. 1 ^^7 ^ ^^7 V^^ ^^ ^ house occupied as a separate dwelling 
and separately rated to tie relief of the poor. The definition 

41 & 42 has been altered by an Act of 1878 in sach a way as not to 

Vict. c. 26. , "^ , , •' , 

include separate rating as part of the qualification. An 

obvious difficulty arises, and one which courts of law have 

acknowledged to be almost insuperable, in distinguishing the 

householder &om the lodger. The householder's tenement 

must be rateable though it need not be separately rated, and 

rates must be paid in respect of it, but, as will be seen, such 

rates need not be paid by the householder. If he occupies 

Bradley v. a part of a house, not separately rated, he must be deemed 

s^.B.D. ^ householder or a lodger according to his relations with the 

^'9' owner of the entire building. 

Require- (4) The Act of 1 867 required not merely that the dwelling 

payment of house should be rated but that the occupier should be rated 

^^^' and should pay the rates. In fact the Act intended tiie 

household franchise to depend upon the personal payment of 

rates by the voter, thereby preventing it from being obtained 

where the practice of compounding prevailed. ' Compoonding ' 

meant that the owner was rated in lieu of the occupier and 

made his own terms with the overseer and the occupying 

tenant. 

32 & 33 But the Poor-rate Assessment and Collection Act 1869, 

s/t^ ^' provides that (1) an owner may agree, in certain cases, with the 

"• 4- overseers, or (2) may be compelled by the vestry to be rated 

M- It 8. instead of the occupier, or (3) may make his own terms with 

the tenant as to paying the rates, and in no case is the tenimt 

to lose his vote by means of such a transaction between his 



Sect. II. §3-] WHO MAY CHOOSE. 101 

landlord and the overseerB or between his landlord and himself. 
The overseer is bound to enter on the rate-book every occupier 
of rateable premises, and the occupier is not to lose his vote 
by reason of an omission to do this on the part of the overseer. 
These provisions, ' ex abundanti cautela,' are made of general 
application hj 41 and 4a Vict. c. 26, s. 14. Such was and is 
the Household, or as it is more commonly called the * Inhabitant 
occupier' franchise. 

The Lodger firanchise was given by the Act of 1867 to one The lodger. 
who has resided in the same lodgings as a sole tenant for 
twelvemonths next preceding the 3i6t of July in the year in 
which he claims to be registered, such lodgings being of the 
clear yearly value unfurnished of j^io. By the Act of 1878 4\ & 4* 
the lodger may during his period of residence have occupied s. 6. 
different lodgings in the same house without invalidating his 
vote, and may be a joint occupier with another if the total rent 
IB equivalent to j€'io apiece. 

§ 3. TAe Scotch Franchise before 1884. 

Until the year 1 832 the Scotch representative system was in Sooteh 
a condition even more strange and anomalous than the English, oonnties : 
The county qualification was twofold, (i) a * forty shilling land 
of old extent' held of the Crown ; or (a), if not of old extent, 
then rated in valuation books at i€'400 of valued rent. 

The qualification was thus a purely freehold qualification 
under conditions more exacting than were required of the 
English freeholder. 

The boroughs elected their representative on a still less popular in 
fianchise. Those entitled to be represented were the sixty- "^ ** 
six royal burghs, of which Edinburgh alone had a member to 
itself. The others were divided into fifteen groups, of which 
each grronp was entitled to a member. On the occasion of 
an election the sheriflT gave notice to the town council of each 
buigh ; they each elected a delegate ; the delegates met in their 
respective groups, and so elected the representatives of the 
boighs. 



102 THE HOUSE OP COMMONS. [v, 

J & 3 Will. The Act of 1832 altered the distribution of seats and swept 
' ^' ^' away the old franchises except in so far as individual vested 
interests were affected. It created property and occupation 
franchises in counties, and an occupation franchise in boroughs, 
following the model of the English firanchises of that nature 
both in character and amount, except in so far as Scotch pro* 
perty law compelled differences of detail. 

31 k 32 In like manner did the Act of 1868 reduce the property and 

^ '^'^ ' occupation francluse in counties and introduce the household 
and lodger franchise in boroughs, leaving existing borough 
franchises intact. 

§ 4. TAe Irish Franchi^ before 1884. 

The Irish borough and county franchise before the Reform 
Bill exhibited much the same features as the English repre- 
sentative system. But in the year in which the Roman 
Catholic Relief Bill was passed a disfranchising bill also 
became law, by which no freeholder was entitled to vote for 
a county unless he had an estate of if'io a year, 
3 & 3 Will. The Act of 183^ swept away the old borough qualification 
IV, c. 88. ^3^0^p^^ 2A in England, in certain cases of freemen, and of free- 
holders in towns which were counties, and introduced the 
occupation qualification and extended the qualification in 
counties to leaseholders and copyholders : this last a somewhat 
idle boon, since there is no copyhold in Ireland. 
,5 4 J . The franchise was further extended by an Act of 1850 to 

Vict. c. 69. ^12 occupiers and £^ freeholders in counties, and to J^8 
occupiers in towns. It was frirther extended in 1868, but, 
though the lodger qualification was then introduced as in 
England and Scotland, the household qualification was only 
reduced from £i to £^ 

§ 5. The Eepresentation of the People Act, 1884. 

We are now in a position to consider the Act of 1884. It 
has been necessary to go through the details of some of the 
franchises created by previous Acts, because the Act of 1884 



Sect. II. §§ 4, 6-] WHO MAY CHOOSE, 103 

letains them, and they form a part of it. It mast be borne Effect of 
in mind that the Act of 1884, though it has simplified the c. 5. ^^ 
franchise, has not simplified the law relating to the franchise ; 
the rules relating to electoral rights mast still be sought in 
the clauses of various statutes, some of which are left in exist- 
ence, and must be read into the Act, while others are repealed 
and their provisions embodied in it. 

Bat we can now set forth our electoral law for England, 
Scotland, and Ireland as uniform, with some few exceptions, 
in town and county, throughout the three kingdoms. 

It will be simplest to group the existing franchises under 
tiie three great aspects of qualification — Property, Occupation, 
Residence — and to point out in each case the statutory 
authority for the qualification. I think it well to keep these 
three kinds of qualification apart, for the difierence between 
Occupation and Residence is a real difference : but it is com- 
mon to describe the last two under the term Occupation, 
distinguishing three sorts of voters as comprised under this 
term, the occupier, the inhcMtant occupiefy and the lodger. 

Property. 

Property qualifications are the great exception to the uni- 
formity created by the Act. They are limited in all cases to 
counties, and, in England, to towns which are counties. They 
are untouched by the Act of 1884, except in respect of the 
multiplication of votes by fictitious qualifications. They are 
therefore more various throughout the three kingdoms than 
are the qualifications by Occupation and Residence. 

They are as foUows. 
In England : — 

Freehold^ of forty shillings clear yearly value, if an estate of 8 Hen. vi, 
inheritance, or in occupation, or acquired by marriage settle- j'^'i wm 

ment, devise, benefice or office. ^* <*• 45» 

. . ■. 18. 

Freehold^ of £$ dear yearly value, if an estate for life, not 30 ft 31 

in occupation or acquired as above described. 0. loa, 8. 5. 

Copyhold, or any tenure other than freehold, of £$ clear 3p & 31 

, , Vict. 

yearly value. c 102,^5. 



104 THE HOUSE OF COMMONS. [v. 

30 & 31 Leasehold ; (1) of £^ clear yearly value, if originally created 
c. 102, 8. 5 ^^' * i^rm of not less than sixty years ; (2) of i^5o clear yearly 
2 & 3 wm. value, if originally created for a term of not less than twenty 

Vio.^^' years, 

A sub-lessee or assignee of leasehold of this value is en- 
L. E. 7 C. titled to vote if in occupation. ChorUon v. Stretfard. 

In Scotland : — 

31 & 32 Lands and heritages in proprietorship of £$ jeBs\j value as 
c. 48, 8. 5. appearing in the valuation roll. 

Leasehold of if 10 clear yearly value if for life or originally 
created for a term of fifty-seven years; of £$0 clear yearly 
value if originally created for a term of not less than nine- 
teen years. 

1 3 at 14 In Ireland : — 

c/ao, 8. 2. Freehold of £$ net annual value. 

35Geo.III Rentcharges (subject to the provisions of 48 Vict. c. 3, s. 4) 

c "9, ^ ^^ leases for life or lives of j€*ao clear annual value. 

■■• »5» 30- Leasehold of if 10 clear annual value if created originally 
for a term of sixty years ; of if 20 clear annual value if 
originally created for a term of fourteen years. 

Occupation, 
48 Vict. Throughout the United Kingdom there is a uniform 
o ^'rfi ^ qualification given to the occupier for twelve months before 
tion ani- registration — in England, Ireland, and in Scotch buighs, as 
yalue. owner or tenant, in Scotch counties as tenant, of lands or tene- 
ments within the county or borough of the value of jf 10. 
These qualifications differ in three ways. 
Differenee (i ) As to the mode of ascertaining the value of the quali- 

in mode of ^ . ^ ^ .^ • 

MMBsing fying tenement, it is — 

^ "®' In England, clear yearly value ; 

In Scotland, annual value as per valuation roll ; 

In Ireland, net annual value nsper last poor-rate, 
in require- (2) As to residence required of the occupier : — 

nie]it8 of 

re8ideiiM ; In English and Scotch counties, and in Irish counties and 
boroughs, none is required. 



Sect. n. §6.] WHO MAT CHOOSE. 105 

In English boroughs residence during six months of the 
qualifying year in or within seven miles of the borough. 

In Scotch boroughs residence during the whole of the 
qualifying year, in or within seven miles of the borough. 

(3) As to rating and payment of rates and taxes : — and of rate- 

In England the county and borough occupier must alike P*^^"*^' 
have been rated to the poor-rate, and must have paid, by 
the ^th of July in the year of his claim to vote, all such 
rates as were due on the preceding 5th of January. 

The borough occupier must further have paid all assessed 
taxes due from him up to that date. 

In Scotland the county occupier must have paid by the 20th 
of June in the year of his claim all poor-rates due from him 
up to the 15th of May : the borough occupier must have paid 
by the 20th of July all assessed taxes due from him up to the 
6th of July. 

In Ireland the county and borough occupier must alike 
have been rated to the poor-rate, and must have paid by the 
1st of July in the year of his claim all rates due up to the ist 
of January. 

The English occupation franchise depends, as to value^ on Statutory 
48 Vict. c. 3, 8. 5 : as to conditions^ in counties, on 30 & 31 Vict, 
c. 102, 8. 6 ; in boroughs, on 2 & 3 WilL IV, c. 45. 

The Scotch depends, as to value^ on 48 Vict. c. 3, s. 5 : 
as to condilionsy in counties, on 31 & 32 Vict. c. 48, s. 6 ; in 
buighfl, on 2 & 3 Will, IV, c. 6^^ s. 11. 

The Irish depends, as to value^ on 48 Vict, c 3, s. 5 : as to 
conditioMy on 13 & 14 Vict. c. 69, ss. 1,5. 

Besidenoe. 

The Household qualification is now uniform throughout the The House- 
United Kingdom, and is given to the inhabitarU occupier ^ 

' Aeiual inlialntaiiej during every part of the year k not neoeasary, but 
there miiBt be an intention of returning after a temporary absence, and the 
power of returning at any time without breach of legal obligations. See 
Judgments given on November 5, 1885, in Q. Q. D. 



1^6 THE HOUSE OF COMMONS. [V. 

(whether he occupies as owner, as tenant, or in virtue of anjr 

office, service or employment) of a dwelling-house or anj part 

of a house occupied as a separate dwelling which has been rated, 

and for which rates have been paid by certain dates in the 

year of claim, which dates differ in England, Scotland, and 

30 k 31 Ireland. The creation of the household franchise dates from 

c. loa, 8. 3. the Act of 1867, which applied it to English boroughs, and 

31.^33 the Act of 1868 which applied it to Scotch boroughs. Its 

c. 48^ 8. 3. extension to counties in Scotland and England, to counties and 

boroughs in Ireland, and its application to dwellings occupied 

in virtue of any office, service, or employment was the work 

48 Vict, of the Act of 1884, But the qualification in this last case 

depends upon the house not being inhabited by the employer 

of the person claiming to vote. 

The provisions as to rating are complicated. The Act of 
Viot. 0^41. ^^^7 11(^6 the franchise depend on the personal payment of 
rates. The Poor-rate Assessment and Collection Act of 1869 
A»te, altered the law in the mode described on a preceding page. Its 
' . ' provisions were extended by the Registration Act of 1878 ; 
Vict.c 26, and were made applicable to Ireland by the Act of 1884; it 
48 Vict, is made the duty of the overseers throughout the United 
wib-8* 7' Kii^gdom to ascertain with respect to every dwelling-house 

who is entitled to vote in respect of it. 

^ The Lodger qualification is also uniform throughout the 

United Kingdom, and is given to every occupier, as lodger, of 

lodgings of the elear yearly value, if let unfurnished, of <^io 

for twelve months before a certain date in his year of claim, 

which date differs in England, Scotland, and Ireland. The 

lodger is not disqualified, in England and Ireland at least, 

because he has occupied different lodgings of the requisite 

value in the same house, nor because he occupies them jointly 

30 & 31 with another lodger if the aggregate value is sufficient. The 

o. loa, 8. 4. lodger fi*anchise was created for English boroughs by the 

Vict.^* Act of 1867, for Scotch and Irish boroughs by the Act of 

00.4^,49. 1868, and for counties in England, Scotland, and Ireland 

48 Vict. . 

c. 3.8. 1. m 1 004. 



Scct.n.§5] WHO MAY CHOOSE. lOT 

There still exist two ancient franchises reserved by the sue- Andent 
ceadve Reform Acts of the century : the 40*. freehold qualifi- rea^^. 
cation in towns which are counties subject to the rules laid 
down in § 18 of the Reform Act ; the qualification as burgess 
or freeman in those towns in which, prior to 183a, such 
a qualification gave a right to vote. But the Reform Act 
of 1832 imposed restrictions as to residence and the mode of 
acquiring the freedom which have not been relaxed. The 
freeman must have acquired his freedom by birth or servi- 
tude, and must during the year preceding the date of his 
claim to registration have resided in or within seven miles 
of the borough. 

In the City of London this franchise still holds, but with The City, 
some variations from the above rule. It is not enough to be 
a freeman of the City ; in order to qualify, the voter must also 
be a liveryman of one of the City Companies. Ho may further 
acquire the freedom by purchase, and may reside within 
twenty-five miles of the place of poll. 

The only qualification which remains to be noted is that The Uni- 

^r Avn Y ^ 1 Aft 

which confers the right to vote for a University constituency. 
Members of the Convocations of Oxford, Cambridge, Dublin, 
and London, the Chancellor, the Professors, the members 
of the University Court and General Council of Edinburgh, 
Glasgow, St. Andrew's, and Aberdeen are qualified to vote for 
their respective Universities if of fuJl age and not subject to 
any l^;al incapacity. 

It remains to summarise the effect of recent legislation on SummAry. 
the franchise. 

Property constitutes a qualification in counties only, and in 
England in towns which are counties. As it is wholly un- 
tonched (except in the provisions relating to &ggot v^tes) by 
the Act of 1884, the rules respecting it have to be sought in 
variona statutes ranging from 14129 to 1884. 

Occupation is now required to be of lands or tenements of 
a uniform value in towns and counties throughout the United 



108 THE HOUSE OF COMMONS. [v. 

Kingdom, bat the conditions of the qualification have to be 
songht in the previous Acts which deal with the representa- 
tion of the people ; they differ in towns and counties, and the 
test of value is different in each of the three kingdoms. 

Residence, as a householder or lodger, is now a uniform 
qualification in counties and boroughs throughout the United 
Kingdom ; the difficulties respecting these franchises consist 
in the ascertainment of the law respecting rating, on which 
the household franchise depends, and in the distinction of 
a householder &om a lodger. 

§ 6. Incapacities and Disqualijications. 

Sex. I. The ixanchiBe is limited in the first instance to persons 

of the male sex. The question of the common law disability 
of women to exercise the franchise arose incidentally upon the 
interpretation of s. 3 of the Representation of the People Act, 
1867. The word * man ' is there used to describe the persons 
entitled to vote; the Reform Act, 1832, has used the w^ords 
' male person ' for this purpose, and in the mean time an Act 
(13 & 14 Vict. c. 21) had provided that *in all Acts words im- 
porting the masculine gender shall be deemed and taken to 
include females unless the contrary is expressly provided.' 
But the Court of Common Pleas held firstly that since the 
Acts of 1832 and 1867 were to be read together, the words 
used in the Act of 1832 amounted to an express provision that 
'man' did not include 'woman' in the Act of 1867; and 
secondly that the qualification was conditional on the absence 

Ch(nrlt(m o. of legal incapacity, and that women were at Common Law 

4,^aP.574. ii^cap^ble of exercising the Parliamentary franchise. 

^ 2. Infancy, whether or no it be a disqualification at 

Common Law, is made a disqualification by 7 & 8 Will. Ill, 
c. 25, s. 7, and by subsequent Acts extending the franchise to 
persons who were not capable of exercising it when that Act 
was passed. 

Peerage. 3. No Peer other than a Peer of Ireland who has been acta- 



Sect. n. §6.] WHO MAY CHOOSE. 109 

ally elected and is serving as a member of the House of Com- 
mons has a right to vote. This disability appears to rest upon 
usage, upon repeated resolutions of the House of Commons, 
which though they could not make the law must be regarded 
as high authority on the rules of electoral law, and finally 
apon the decision of the Court of Common Pleas in 1872 
npon the appeal of Earl Beauchamp against the overseers of 
Madresfield. ' Upon the authorities as well as upon prin- 
ciple,' said Bovill C. J., ' I am clearly of opinion that a peer of 
Parliament has no right to vote in the election of members L. B. 8, 
of the House of Commons.' 

4. Betumingf officers are not entitled to vote unless the Returning 
votes for two candidates should be equal, in which case the 35 & 36 
tetnming officer has a casting vote. ^**^' ^' ^^' 

5. Employment of certain kinds is a disqualification. And Employ* 
the sorts of employment which disqualify may be classified as ^^"^ ' 
employment under Government, and employment for the 
parposes of an election. 

The old restrictions imposed on revenue, excise, and stamp Under 
officers have been swept away, but there are still a numerous ment. 
class of officials, chiefly those connected with the police, who H^ ^^ 
are disqualified by various statutes from voting ^. 

An agent, canvasser, clerk, messenger, or person in any sort At elec- 
of employment for purposes of an dection, may not vote : his *^ ' ^ 
vote may be struck off on a scrutiny, and the voter commits Vict. c. 33, 
a misdemeanour. This disqualification is created by the 
Bepresentation of the People Acts of 1867 and 1868. 

In Scotland the assessors of burghs and counties, a part of ISi^ '^ 
whose duties it is to attend to the registration of voters, are i. 8. 
disqualified from voting for the constituency in which they -v^ct. 0. 83, 
are so employed. ■• '3- 

6. An alien is disqualified fit)m voting by the rules of Aliens. 
Common Law ; and from the rights conferred upon them by 

the Naturalisation Act of 1870 are expressly excepted the 3.^.^34 

Vict. c. I4« 
^ Bogen on Eleotions (ed. 4), vol. i. pp. 133-124. 



110 THE HOUSE OF COMMONS. [v. 

right to qaalify, Tmlees naturalised, for any office, or parlia- 
mentary or nmnieipal franchise. 
Menial nn< 7. The right of a person of unsound mind to vote must 
depend upon the kind and degree of his mental infirmity. 
An idiot would unquestionably be disqualified ; a lunatic, if 
80 found upon commission, would probably be held to be dis- 
qualified ; the question has not arisen, and the caaes decided 
appear to relate to persons of known unsoundness of mind 
who were nevertheless not regarded as wholly incapable of 
other business. Their votes were allowed ^. 
Conviction 8. Conviction of treason or felony is a disqualification, 
® ^^^ ' unless either the term of punishment has been served or a free 
Vict, o! ar, P&i^on has been obtained. Corrupt practices at a Parlia- 
"• 3- mentary election are but a misdemeanour (except in the case 

of oorrupt o^ personation, which is felony), but a conviction for corrupt 
practices, practices disqualifies the offender for seven years for voting at 
any election. A candidate or agent guilty of certain illegal 
payments, or hirings not amounting to corrupt practices, is 
disqualified for that place for five years. 
xhoB, 9. No one is entitled to be registered as a voter who has 

^ 4^^i q6- ^'^ within the twelve months next preceding the last day of 
30 ft 31 July in each year in receipt of parochial relief or other alms 
I03, 8. 40. such as ' by the law of Parliament now disqualify from voting.' 
48^40 ^^^ ^^ disqualification does not now extend to parochial 
Vict. c. 46. relief given in the form of medical or suigical assistance. 

It is not easy to determine what alms, other than parochial 
relief, disqualify ; but it seems safe to say, on the authority of 

a c. P. D. Harrison v. Carter, that it is not the character of the alms or 
a6. 

the position of the person distributing them, but the condition 

of the voter who receives them, which determines the right to 

vote. Where alms are given to persons who woidd, but for the 

receipt of such alms, come upon the parish, it is obvious ' that 

persons in that position are just the persons who are most 

9 G. P. D. likely to be susceptible of manipulation for a purpose which 

* ' the legislature has always been anxious to discourage, and 

> See caeei coUeoted in Rogers on elections, ed. 14, vol. i. pp. iz8, X19. 



« 

Scct.n.§6.] WHO MAY CHOOSE, 111 

pecoliarly open to a temptation from which this enactment 
was meant to shield them.' 

It will be obvions &om the description which has been given Fagot 



votes. 



of the Property qualification in counties that it would be 

possible to multiply votes by the creation of a great number 

of small freeholds, each worth forty shillings a year. The 7*8 Will. 

in 0. 35 ' 
practice was met by Acts passed early in the eighteenth lo Anne, ' 

century, by which the splitting of interests in houses and °* ^^' "" '* 

land, with a view to the multiplication of votes for election 

purposes was forbidden, and conveyances made with such 

intent were declared void. But the fraudulent intention was 

made the ground of avoidance, and the Act was held to extend 

only to conveyances not intended to give any real interest, 

made for the purpose of a particular election, and with an 

understanding that the property should be reconveyed when 

the transaction had served its turn. The legislation of 1 83 ar Reform 

dealt with such fictitious qualifications in two ways. First, 

by requiring in the case of all qualifications that the voter 

should have possessed for twelve months before the date of 

registration, and next by limiting, in the mode described Anie,^.g$, 

above, the conditions under which the forty shilling freehold 

should constitute a qualification. 

Still, so long as a rent charge or a joint tenancy gave the Rent 
franchise, it was easy for a landowner to multiply estates of ^ "^^'^ 
inheritance such as would confer votes without materially 
inconveniencing himself in the enjoyment of his property. 

The Representation of the People Act, 1884, has put an end 
to this practice. The fourth section provides that no man 
shall be entitled to vote in respect of a rent charge except the 
owner of the whole of the tithe rent charge of a rectory, 
vicarage, or chapelry ; and it provides that where two or more Joint 
are owners as joint tenants, not more than one, 11 his interest ^ 
is sufiScient, shall vote, unless the joint tenancy has been 
acquired by 'descent, succession, marriage, marriage settle- 
ment, or .will,' or where the joint tenancy is in the actual 



112 THE HOUSE OP COMMONS. [v. 

oocupatdon of the owner for the purpose of carrying on trade 

or business. Joint Occupation, as opposed to joint ownership, 

50 & 31 was dealt with as concerns counties by the Acts of 1867 and 

^loa 8.a»-. ^^^^' which provided that joint occupiers, if the aggregate 

& 32 value of the tenement sufficed, might vote to the number of 

Vict. c. 48, ^^^^ b^^ uQ^ more, unless the tenement had been acquired in 

one of the modes above described. 



Section III. 

How THET MAY CHOOSE. 

§ I. Distribution of Seats. 

First it is necessary to ascertain what are the constituencies 
<%which choose members for the House of Commons. The 
present distribution of seats depends upon very recent legis- 
lation, but it is necessary to indicate, however slightly, the 
48 ft 49 shares of representation which different parts of the country 
' respectively enjoyed at different periods before the Act 
of 1885. 

To the Model Parliament of 1295 were summoned two 
knights from each shire, two citizens irom. each city, two 
burgesses from each borough ; and it seems clear that the sheriff 
directed his precept to such towns as he considered qualified 
within the terms of the writ. 
Number of The county representation underwent little alteration down 
gnemben. to 1 832, and varied only by the addition of counties pi^ 
viously unrepresented. In 1556 Monmouth acquired the 
right to send two members, and each Welsh county one. The 
counties palatine of Cheshire and Durham were placed on a 
footing with the others in respect of representation in 1543 
and 1673 respectively. The Union with Scotland added thirty 
members for counties, out of a total addition of forty-five, and 
the Union with Ireland sixty-four out of a hundred. 



Sect. III. § I.] HOW THBY MAY CHOOSE. 113 

Bat the number of represented borouglis flactoated con- Numbenof 
sidenibly during the middle ages. In the reign of Edward I m^^M. 
i66 were summoned to return members, but the normal or 
avenge number which actually sent members appears to have 
been 99, of which London assumed, and by custom acquired, 
the right to return four. 

The towns were not very anxious to return members, Caufes of 
for the members had to be sent to Westminster or wherever tion. 
the Parliament assembled, and maintained at tiie expense of 
their constituents^. Again, the borough which returned 
members was rated higher than the county in the propor- 
tion of a tenth to a fifteenth^, while the town which re- 
turned no membeiB shared the rating of the county. And in 
addition to the unwillingness of the towns we must take 
into account the action of the sheriff, who might withhold 
the writ, sometimes arbitrarily, sometimes because a town 
had become depopulated or decayed. 

Large additions to the borough representation were made 
during the reign of Henry VIII and onwards until the reign 
of Charles IL Some towns were added by royal charter; 
some by statute ; some revived rights which had lain dormant 
for centuries* In the reign of James I there was a strong 
tendency to revive such ancient and forgotten rights of repre- 
sentation, and the House of Commons resolved on the 4th of 

' Tile payment of their members appears to have been a common law lia- 
bility of the oonstitnencies. The knights, citizens, and burgesses took home 
with them their writs de expenns levtindiSf as a matter of course at the con- 
dosion of a sessian. The cnstomary charge was 4*. a day for a knight of the 
shire and 3«. a day for a citizen or bm^gess, and these charges were secured by 
a statute of Henry YIII, in the case of the newly enfranchised counties and 35 H en, 
towns in Wales and Monmouth, repealed only in tiie present reign. It would vIII. c.i I. 
seem howoTer that as a seat in Parliament became more of an object of ambition, 
memben ceased to ask for the payment of their expenses. The right remained 
in ezistefDoe* and in 1681 Lord Nottingham decided in favour of a member for 
Harwich who sued his constituents for his wages. Ix>rd Campbell, writing in Campbell, 
1846, c jL|j i f noses an opinion that the common law right survives, and that a lives of 
member might still insist upon the wages fixed by ancient custom ; but it may p^^^f.. 
be doobted how far the old liability would attach to the new oonstitaenoies ^^' ^"' 
created hy successive Reform Acts. 

' Stubba, Const. Hist. iii. 449. 



114 THE HOUSB OF COMMONS. [v. 

May, 1624^ 'that ti borough cannot forfeit this liberty of 
sending burgesses by non-user.' 

It is impossible to doubt that, «f the boroughs added by 
royal charter, many were added not because of their im- 
portance, or for the yalue of their voices in the delibera- 
tions of Parliament, but because from their smallness and 
lack of political interest they could be relied upon to return 
nominees of the Court. And in addition to the boroughs 
which were never intended to express a fiee opinion in 
politics, there weiie those whieh had onee been thriving ports 
or Beats of manufiujturmg indnstey, which had dwindled and 
decayed as wealth and commerce moved northwards, and had 
fidlen' under the influence of a great landowner or proprietor 
of boroughs ; or again it happened sometimes that the nature 
of the franchise might be such as to deprive the representa- 
tion even of a laxge and thriving town of any value in so 
' far as it meant the expression of loeal opinion. 

It would be easy to multiply illustrations of the smallnees, 
the corruption, the non-representative character of the oon^ 
stituencies which existed before 1832. It is enough to say 
that it was alleged, and with apparent truth, at the end of 
the last century, that 306 members were virtually returned 
by the influence of 160 persons ; it is certain that the Reform 
Bill of 1831^ had to deal with nine boroughs in which the 
constituencies did not exceed fifteen voters. 
Effect of The Reform Act of 1832, and the Representation of the 
1833,1867. People Act of 1867, both tended to diminish or take away 
the representation of those places which had ceased to express 
any local or mercantile or political interest, and to give 
members to those places which &om their population or 
importance had acquired a fair claim to be represented in 
Parliament. 

There is no great object to be gained by following in detail 
the transference of political power from landowners and 
boroughmongers to communities which possessed numbers, 
interests, and wants. It is enough to note that before 1832 



Sect. III. § I.] HOW THET MAT CHOOSE. 115 

England and Wales letnmed 513 members to Parliament oot 
of a total of 658 ; Scotland 45 ; and Ireboid 100 ; that the 
Beform Act of 1831^ gave to England and Wales 499 mem- 
beis, to Scotland 54, to Ireland 105, and that the Act of 
1867 reduced England and Wales by six seats which were 
transferred to Scotland. The Beform Act of 183a may, in its 
prooeBs of disfranchisement, be compared with the Redistribu- 
tion Act of 1885, though the reasons and the results of the 4S&49 
disfitinchiaing process are widely different. 

The Beform Act had to deal with a great number of con- The Act of 
stituencies which had ceased to represent anything but the francbisiiig 
caprice or ambition of a few indiyiduals. It disfranchised in °^^"^"^* 
England alone 56 boroughs absolutely, and 31 to the ertent 
of depriying each of one member. The seats thus taken from 
the rotten boroughs were given to counties and large towns, 
on the principle that the representation of the country in For- l^ect of 

i. , , uniform 

liament should not be the representation of numbers only, franchise 
bat of communities in which the population was numerous : dilution. 
indeed it was impossible that representation should be other 
than local, so long as the franchise in counties differed from 
the franchise in towns. And for this same reason, until the 
franchise was made uniform, a measure of redistribution was 
necessarily a measure of disfranchisement. Where a borough 
ceased to return members its electors did not merely cease to 
haye a member to themselves ; with the exception of those 
who mi^ht possess the county qualification, they ceased to be 
eleotoTB at all. 

The Sedistribution Act of 1885 has deprived in England The Act of 
79 boroughs of their separate representation, in Scotland 2, frftnchises 
in Lrelaiid 22. It has deprived 36 boroughs in England, and ^^"^' 
2 in Ireland of one member each^ and has taken one member 
from the county of Butland. 

Bnt the Bedistribution Act does this without depriving a btit not 
single elector of his right to vote ; for since the occupation, 
hooaehold, and lodger qualifications are now made uniform in 
county and borough, the borough which ceases to return a 

I 2 



116 THE HOUSE OF COMMONS, [v. 

member drops into the coantj oonstitaency in which it is 
geographical^ situate, its electors become electors for that 
division of the county. They do not lose their votes, 
though their votes may lose something of their former 
importance. 
Is baaed on The Redistribution Act of 1885 differs also from its prede- 
cessors in that it departs to a great extent from the principle 
of local representation, and is professedly based on an attempt 
to divide the members equally, or with a rough attempt at 
equality among the population. 

Before the Act became law the average throughout the 
country of population to members was, in counties, 78,000, 
in boroughs, 41,200, to a member. But this proportion 
was not preserved:., for instance, 79 boroughs in England, 
with populations under 15,000, each returned a member, and 
^6 boroughs with populations under 50,000, each returned 
two members. 

The Redistribution Act starts on the principle, sacrificed to 
some extent in fJEivour of local representation, that the pro- 
portion of 54)000 to a member should be the basis of cal- 
culation. All towns with a population of less than 15,000 
are thrown into their respective counties, whether or no 
they have previously returned members. Towns which have 
more than 15,000 inhabitants and less than 50,000 are to 
return one member ; those which have more than 50,000 
and less than 165,000 are to return two members; and beyond 
this an additional member is given for every additional 
50,000 of population ; and the county representation is based 
in like manner upon numbers. 
Exoeptionf . The Universities are exceptions &om the general principle 
of the Aet« Oxford has nearly 6,000 voters, Cambridge nearly 
7,000 voters, Dublin about 4,000 ; each returns two members. 
Glasgow and Aberdeen combined have about 6,500 voters ; so 
have Edinburgh and St. Andrews. Of the two combined con- 
stituencies, each returns one member, and so does the Univer- 
sity of liondon with bexely 2,000 voters. 



Sect. III. § X.] ^OW THEY MAY CHOOSi. 117 

Bot the Redistribation Act makes a farther change and Single- 
depaitnre from the traditions of our representative system ; a oonstitu- 



change which follows not annatorally from the attempt to 
proportion members to population throughout the country. 
Except in the cases of the Universities of Oxford, Cam- 
bridge, and Dublin, of the city of London, which is reduced 
iiom four members to two, and of those towns which have 
hitherto combined the possession of two members with 
a population between the limits of 50,000 and 165,000, 
the constituencies are to return one member apiece. For 
iiistance, Wolverhampton, which returned two members, 
JeceiveB an additional member, and is cut into three wards or 
constituencies. Liverpool, which returned three members, 
will now return nine, and is divided into as many constitu- 
encies. Lancashire, which returned eight members in four 
diyisions, will now return twenty-three members in twenty- 
three divisions. Except in the cases which I have named 
as exceptions, in which the principle of the ' community has 
still been preserved,' the Act adopts^ said Mr. Gladstone^, * not 
absolutely bb a. uniform, but as a general and prevailing rule 
the system of what is known as one-member districts. The 
one-member district is, as &r as England is concerned, almost 
a novelty, because in a system of representation which counts 
and reckons more than six centuries of life, what began at 
the Reform Bill ^ may be considered almost a novelty. The 
lecommendatioiis of this system are, I think, these — ^that it is 
very economical, it is very simple, and it goes a very long 
way towards what is roughly termed the representation of 
minorities \' 

* CCXCIY. Hansard, 380. Debate of Dec. i, 1884. 

' This 18 not strictly accurate. Edward lY gave by charter the right of 
reionmig one member to Wenlock. The Welsh counties and county towns 
each reinzned a member by a statute of Henry YIII ; so did Bewdley, Higham 
Ferrerty aiod Banbury, enfranchised, the first two by Mary, the last by James I. 

* It can hardly be said that in the General Election of 1 885 the representation 
cif miaorities was much advanced by the single-member system. 



encies. 



118 



THE HOUSE OF COlOfOKS. 



[V. 



Registra- 
tion. 



48 Vict, 
c. 15. 

Duties of 
Clerk of 
thepeaoe; 



of the 
oveneer, 



Ants, p. 

lOl, 

in respect 
of owners. 



of occa- 
piers, 



§ 2. BegUtratien. 

It is a condition precedent to the exercise of the right 
to vote that the voter ehould be upon the Begister. This 
preliminary to the enjoyment of the franehise was first intro- 
duced when the franchise was remodelled in 1832, and tiie 
roles respecting it have been dealt with by various statutes. 
As this book is not a manual of election law I do not propose 
to go into the rules of Registration in detail. It is enough 
to describe the practice in outline for England, as settled by 
the Registration Act, 1885. 

It is the duty of the clerk of the peace in a county, of the 
town-clerk in a borough, to send to the overseers of every 
parish or township, on or within seven days of the 15th of 
April in each year, a precept. The precept contains a de- 
scription of the qualifications which entitle persons to be 
registered as voters, and the order and dates of the things 
which the overseer is required to do. By following the chief 
instructions conveyed in this precept we may obtain some 
knowledge of the process of registration. 

The overseer must in April or May ascertain who is entitled 
to be registered as an inhabitant occupier of a rated dwelling- 
house, and must enter the names of such persons in a column 
of the rate-book. And if rateable property is not rated, the 
overseer must act in respect of the inhabitant occupiers of it 
as if it was rated. 

Before the soth of June he must publish, if in a county con- 
stituency, the existing register of ownership voters, and must 
give notice to any j£*io occupier who has not paid his rates. 
Before the 22nd of July he must make out a list of such 
occupiers as, not having paid their rates by the 20th of July, 
are disqualified. And before the 31st of July he must ascer- 
tain from the relieving officer of the parish the names of all 
persons disqualified by receipt of parochial relief. 

Before the 31st of July he must also make out a list of 



Seek. III. § 3.] HOW THEY MAY CHOOSE. 119 

occapiera, that is, of all pereons whom he has ascertained to 

be qualified as «3^io rated occupiers, as inhabitant occapiers, 

and if in a county of £y> rental occapiers. He most make 

out a list of lodgeis already on the register who have sent in of lodgers. 

their claims to appear in respect of the same lodgings ; and, if 

in a county, a list of ownership claimants. 

By the 20th of August all new claims have to be sent in, ClalmBand 
and the lists, together with notices of objections, have to be 
published on the door of eveiy church er public chapel in the 
parish. 

By the 25th of August the lists of occupiers and old lodgers, 
and of claims and objections, must be sent by the overseer to 
the town derk in a borough, to the clerk of the peace in a 
county, with the addition of a copy of the ownership register, 
and of lists of daims and objections in respect of ownership. 

In September the B«vising Barrister comes round and The Bevis- 
adjudicates upon disputed claims and objections to names ^ 
existing on the Register : from his decision an appeal lies on 
a case stated by him, to the Queen's Bench Division of the 
High Court, and on the result of the revision the Register the Begis- 
is made out, containing three lists if it is for a county, two ' 
if it is for a borough. The three list& are lists e£ ownership, 
occupation, and lodgper voters ; and the ownership list is the 
one omitted in boroughs. 

It ¥Fill be seen that much care is taken in these provisions 
on behalf of the occupier. The ownership voter must claim 
in order to get on to the Register, but once there he need not 
make a fresh claim. The lodger voter has to claim afresh 
every year, but the fortunate occupier enjoys the privilege of 
being entered by the overseer on the occupier's list without 
the requirement of a claim on his part. 

A man therefore who desires to vote for a county or 
borough must first obtain some one of the qualifications which 
have been set forth above, and next he must ensure that his 
name is placed upon the Register. But he may be subject to AnU, p. 
disqualifications which, if known and urged before a Revising 



120 ' THE HOUSE OF COMMONS. [v. 

barrister, would have disentitled him to be placed upon the 
Register; and it has been questioned how fiur the evidence 

conclusive, fumished by the Register is conclusive not only upon the 
returning officer who receives the votes, but upon the Court 
which may have to inquire into the validity of elections. 

35 & 3^ The question turns on the construction of s. 7 of the Ballot 

Vict. , 

c. 33, B. 7. Act, which enacts that no one shall be entitled to vote whose 
name is not on the Register ; that every one shall be entitled 
whose name is on the Register, but that 'nothing in this 
section shall entitle any person to vote who is prohibited from 
voting by any Statute or by the common law of Parliament.' 
And this exception to the conclusiveness of the Register 
has been interpreted not to include 'receipt of parochial 
relief, non-residence within proper distance of the borough, 
non-occupation, insufficient qualification.' * It does not mean 
persons who from failure in the incidents or elements of the 
franchise could be successfully objected to on the revision of 
the register : it means persons who from some inherent or for 

Siowe V ^^® Hme irremoveable quality in themselves have not, either 

Joiliffe, by prohibition of statute or of common law, the status of 

G. P. 734. parliamentary electors.' 

The votes of such persons might be rejected by the return- 
ing officer, or if accepted hy him might be struck off at a 
scrutiny upon an election petition. 

Thus an undergraduate of full age who, in de&ult of objec- 
tion, was placed on the Register of parliamentary voters for 
the City of Oxford in virtue of the occupation of College rooms, 
would be entitled to vote. Not so an infimt undergraduate in 
a like position. 

§ 3. Mode of Election. 

The process by which an election is made has been described, 

in its preliminary stages, in an earlier chapter. It has been 

described up to the point at which the returning officer 

Effect of receives the writ directing him to procure an election. As 

j^^ the process of election is now governed by the Ballot Act of 



Sect.ni. 43.] HOW THEY MAY CHOOSE. 121 

1872, it is worth noting that the changes effected by that Act, 
apart from details of procedure, relate to the publicity (1) of 
the nomination, (2) of the poll. Until that date the nomina- 
tion took place at a hustings. The candidates were proposed 
and seconded in commendatory speeches, addressed for the 
most part to a casual crowd, consisting mainly of persons not 
entitled to vote. The candidates explained their political 
views, and, if the election was contested, a show of hands was 
demanded by the returning officer. Whatever the result of 
the show of hands it had no effect on the election. A poll was 
demanded on behalf of that can£date for whom fewest hands 
were held up, and on the days and at the place fixed for th« 
poU the voters announced publicly the name of the candidate 
for whom they desired to vote. The disorders of the nomina- 
tion and the possible intimidation of voters who voted openly 
were the evils which the Ballot Act was designed to remedy. 

The present provisions of the law with respect to the conduct Roles of 
of an election depend upon the Parliamentary and Municipal 
Elections Act, better known as the Ballot Act, of 1872. The 35 & 3^ 

. . Vict. 0.33. 

returning officer, upon the receipt of the writ, must give 
notice of the day and place ef election, and of the poll if the 
election is contested ; and he must do so, in the case of counties, 
within two days of receiving the writ, in the case of boroughs, 
on the day of its receipt or the following day. The election The nomi- 
most take place, in the case of counties within nine days, in 
Hke case of boroughs within four days, from the receipt of the 
writ, and within those limits the returning officer may fix the 
day. The candidates have to be nominated on the day fixed 16 & 17 
for the election by the returning officer. The nomination is 
made in writing, each candidate being proposed and seconded 
by a r^fistered elector for the constituency; the names of 
eig^I^t other registered electors must be affixed to the nomina- 
tion pftper as assenting to the nomination. 

If within an hour of the time fixed for the election no more The poll. 
candidates are nominated than there are vacancies, the election 
is then made and the names returned to the Crown office in 



122 THB HOUSE OP COMMONS. [v. 

Chancery. If there is a contest the election is adjourned to 
a polling day, to be fixed by the retnming officer : in a county, 
not less than two nor more than six dear days ; in a borough, 
not more than three clear days bom. the day fixed for the 
election. 

^ & 41 Polling places are to be fixed eonveniently as to number 

and situation by the local authorities, and the poll is to 

48 Yiot. commence at eight in the morning, and conclude at eight 

^' '^' in the afternoon. During these hours the voter, qualified 
and registered as above described, can deliver his vote at 
the polling place of his district by ballot. A paper is 
delivered to him containing the names of the candidates, and 
he places a mark, as he is able to do in secret, against the 
name or names of those for whom he desires to vote. The 
paper is placed in a box ; at the conclusion of the poll the 
polling boxes are sent to the returning officer at the place of 
election, the votes are counted, the poll declared, and the 
return made to the clerk of the Crown in Chancery. 

24 ft 25 In the Universities, English, Scotch, and Irish, the Ballot 

Vict c. ^-l. 

' Act does not apply, and a voter can deliver his votes orally, 
or by means of a voting paper sent under certain formalities 
&om the place of his residence. 

§ 4. BepresefUation qfMinaritieg, 

Schemes There is a matter whieh cannot easily be passed over in 
senting dealing with the mode in which electors should choose their 
representatives. I refer t» the attempts which have been 
made in various ways to secure what is called the representa- 
tion of minorities. As the electorate becomes larger and the 
constitution more democratic a fear has arisen in the minds of 
some political thinkers lest party organisation should drive into 
two hostile camps what might otherwise be an unmanageable 
multitude of too independent voters ; a fear lest all fi-eedom 
and variety of political thought should be lost from the neeee* 
sity, in order to produce any result at all, of drawing up a 
definite programme of adherence to certain doctrines or of 



minorities: 



Sect. III. §4.] HOW THEY MAY CHOOSB. 123 

fidelity to a certain individnaL What is called the repre- 
sentation of minorities figures under variotis forms, and really 
means different things to different minds. 

First, there is a plan which found favour with the promoters (i) &ncy 
of the abortive reform bills of 1854, 1859, and 1866 ; a plan ^ ^^' 
which was introduced, only to be rejected, into the bill of 
1867. It had for its object to confer additional voting power 
on persons possessed of qualities supposed not to be too 
eommon, on the educated or the thrifty man. We may take 
the propositions of Lord John Russell's bill of 1854 as a fair 
illuBtration. It was intended by that measure to confer the 
franchise on persons enjoying salaries of j^ioo a year, or 
incomes of ^10 a year from Government Stock ; who paid 
40i, income tax or assessed taxes, possessed a deposit of ^^50 
in the savings bank, or were graduates of any university ^. 

It would be easy to multiply objections to qualifications of 
this nature. Some would be very easily created for the 
purpose of an election. Some might be of a fluctuating 
character. The universities are for the most part represented 
already. At any rate, these ' fiincy firanchises,' as they have 
been called, were never fiftvourably received by the legislature. 

Another idea, which has clothed itself in the phrase of (3) self- 

. made con- 

mmontj representation, is based on the desire to secure stitnenciee; 
expression for opinions, perhaps of political importance, which 
may not be the opinions of the majority in any assignable 
locality. It is desirable that such opinions should find 
utterance: as a matter of &ot there are but few opinions 
held by any number of men which have not a Parliamentary 
supporter ; but the absolute security of a representation of 
views can only be attained, if indeed it is attainable, by 
the adoption of Mr. Hare's scheme, and by the abolition of 
local constituencies alt<^ther. 

Bj this process the number of voters would be divided 
by the number of seats, and any person would be elected who 
obtained a number of votes equal to the result of the division. 

' Mdleiwortli, History of EngUndi ii. ao. 



124 HTHE HOUSE OF COMMOKS. [V. 

The voter would ^nange several candidates in the order of his 
choiee, and his vote would be assigned to the candidate 
who stood highest on his list, whose number was not yet fnlL 
One advantage of the scheme would be that a voter would be 
less liable to the xisk of his vote being thrown away. For it 
may well happen, under our present system, that a man may 
be in a permanent minority in the constituency of which he 
forms A part. Anothw advantage would be found in the better 
chance of recognition of exceptional individual merit or of 
special interests or opinions. But, as Mr. Bagehot has very 
fordbly pointed out, the scheme, in so fiur as its machineiy 
did not fSdl, as it probably would fall, into the hands of party 
organisers, would give expression only to extreme opinions 
whose adherents could muster perhaps one or two constituencies. 
For the bulk of the voters would be driven by party managers 
into one of the two party camps because their gradations of 
opinion would not be so strongly marked, nor their desire to 
enforce them so keen as to make it possible to construct a 
variety of constituencies, each just off the strict party lines. 
Where such lines were departed from, the departure would be 
brought about by passionate enthusiasts for an impracticable 
ideal, or by the admirers of the fashionable hero of the hour. 
(3) three- There is another form of minority representation, which has 
constitu- for its object not to give greats political power to deserving 
persons, nor to secure Parliamentaiy utterance for a variety of 
views, but simply to diminish the power of the majoriiiy by 
making the minority rather larger. Such is the ground for 
the institution which prevailed from 1867 to 1885, of ' three- 
cornered constituencies.' More strictly described, it consists 
in giving to each voter in some large constituencies, returning 
three or four members, one vote less than there are seats to fill. 
The result of this is the return of one member who represents 
the minority, unless the majority is so large and so well drilled 
as to be able to spare votes enough to win all the seats. 

There was a patent objection to a system which reduced the 
Parliamentary representation of the majority of a large city to 



enciea 



Sect. ra. 5 4-] HOW THEY MAY CHOOSE. 126 

a level with that of the smallest town entitled to return a 
member. Liverpool, for instance, returned three members; 
each voter had but two votes : the majority of Liverpool was 
Conservative ; the Liberal minority usually secured one seat ; 
on ft party division, therefore, the voting strength of Liverpool 
was no more than that of Eye, since one of its three members 
neutralised the vote of one of the other two. 

But there is an objection, based on wider grounds, to 
these attempts to break the power of a majority by making 
the minority rather larger. So long as, on all important 
questions, a member's mind has to be absolutely settled, 
if he is to obtain or keep his seat ; so long, in fact, as a 
member of the House of Commons is expected to obey with 
the unquestioning obedience of a soldier the orders of his 
party leaders, the size of a minority matters little. A 
minority, however small, can make itself heard ; it can em- 
bitter the conduct of public business by irritating opposition, 
or can impede it by obstruction ; but a minority, however 
laige, is still a minority on a party division. If three men 
are opposed to two, in counting heads the three must win. 

The last form which the question has assumed, and the last (4) propor- 
with which I propose to deal, is proportional representation ; presenta- 
and I do not intend to enter that region of arithmetical ^^^' 
jungle further than may be necessary to describe the object 
which the system professes to aim at. Its supporters desire 
primarily to give a wider choice to the voter, and by so doing 
to introduce variety into the representation, not in the sense 
of securing a hearing for exceptional views, or seats for men 
of exceptional abilities, but in the sense of obtaining a fuller 
representation of gradations and varieties of opinion based 
upon the same principles. In order to effect this they desire 
to see large constituencies returning considerable numbers of 
members, but returning them on a system which approxi- 
mates to Mr. Hare's scheme, applied to a more limited area. 
The system must be admitted to be at present imperfectly 
worked out, and is not free from some elements of chance. 



126 THB HOUSE OF COMMONS. [v. 

But it will not be nnfidr to take the description of its pro- 
cedure, which was given by Mr. Courtney, its most eminent 
political sapporter, to the House of Commons. He would 
allow a great town to retain, as one constituency, all the 
members assigned to it ; would give to each voter one vote, 
but would allow him to say how he will give his vote in an 
order of preference^ supposing that it is n<^ required by the 
first or second candidate of his choice. 
Mr. Court- ' Take the strongest example,' he says, ' that of Liverpool 
potion.' "^ih. nine members. Each voter would put a figure i 
against the name of the candidate whom he most desired to 
see elected, a figure 7, against a second to whom he desired to 
give his vote if the first did not require it, and so on. What 
follows at the end of an election? All the papers are 
collected together, and their numbers are known by the 
existing machineiy. Suppose 40,000 votes were given, and 
there are nine persons to be elected, the first thing to be done, 
according to the plan of which I am speaking, would be to 
divide the 40,000 by 10^ that is, one more than the persons 
to be elected, giving a result of 4,000. Any person who has 
4,001 is sure to be elected, because the remaining votes could 
not be divided among nine people, each getting more ; the 
candidate^ therefore, who gets 4,001 is certain to be elected. 
That, I think, is plain to the majority of the House. The 
papers, having been shuffled together, are arranged in heaps, 
according to the names marked i, and there would be a great 
number of heaps. Some of the heaps would exceed 4,001, 
and those candidates who were found to have that number 
would be elected. The heaps remaining after the 4,001 had 
been taken away would be distributed afresh according to the 
names marked 2. That would bring up some more papers. 
The candidate who got 4,001 votes in these heaps would be 
declared elected, and then there would be another distributioiu 
The process would thus go on, until in the end the nine 
persons would be elected, each receiving 4,000 votes. I claim 
that the plan is simple and workable, and that it woaldL 



Sect. m. §4-] HOW THEY MAT CHOOSE. 127 

secure the representation of the masses of jour big towns. 
It has been asked, ** Are yon going to represent numbers or 
interests?" There is no such distinction. The scheme 
which I am propounding gives representation to all numbers 
and to all interests^.' 

The schemes which have been propounded under the general Various 
description of the representation of minorities in Parliament of the 
have, as it would seem, set forth with different objects. There *'^^^®"- 
18 the attempt to secure additional power in the representation 
for the educated, the thrifty, an^ the well-to-do. This is 
the object of the so-called ' fancy franchises .' There is the 
attempt to secure representation for every opinion which can 
find supporters in the country equalling in number the result 
of the division of voters by seats ; this is Mr. Hare's scheme. 
There is the attempt to break the power of the majority by 
increasing^ the size of the minority through the instru- 
mentality of such a machine as the so-called ' three-cornered 
constituency ; ' and lastly, there is the attempt of the advocates 
of proportional jrepresentation to offer a wider choice to the 
voteTj and to secure the return of independent members. 

The jnractical form which the difficulty assumes under our 
existing system, may be tentatively stated thus : — The single 
member constituencies may produce a variety of representation, 
but must needs do so by accident ; they can only do so when 
the ward or division of town or county happens to contain a 
majority of voters of a special class or character. In the great 
majority of such constituencies candidates will be chosen on 
strictly i)arty lines ; and since large bodies of men have some 
difficulty in coming to conclusions, the candidates of each side 
will be selected by the really eager or extreme representatives 
of each party in the division. 

The electors of such a constituency will only be able to vote 
for one candidate. They will have to choose between two, 
and each of the two will be the nominee of the most zealous 

1 Hftnsard, vol. 294, p. 675. Debate of Dec. 4, 1884. 



128 THE HOUSE OF OOMMOKS. [v. 

PoniUe and pronouiiced members of the two political parties. It is 
duffle-^ very possible that to a great many electors the two candidates 
member may \^ alike distasteful. Men of independent judgment may 
ciei. not care to vote for a candidate whose chief recommendation 

is, that under no circamstances will he withdraw his support 
from a given statesman, the leader of his party ; or that he 
accepts with implicit faith a set of dogmas or a scheme of 
proposed legislation drawn up by active party managers. Yet 
if they do not vote for such a candidate, if they will not 
submit to what Mr. Courtney calls * the pain and ignominy 
of being compelled to vote as some one tells you,' they must 
vote for his opponent, whose opinions may be yet more dis- 
tasteful to them, or they must cease to exercise the privileges 
of an elector. 
Summary. Without pronouncing upon the merita of the last of the 
schemes which I have endeavoured to describe, it is not 
difficult to condemn all tlie others. It is impossible with a 
very extended sufirage to pick and choose among electors, 
and by means of &ncy franchises to give greater political 
power to certain qualities. It is unnecessary to contrive 
elaborate devices for ensuring a hearing to eccentric or un- 
popular opinions : the press and the platform give us ample 
security against the misfortune of idling to be informed of 
every crotchet which has ever vexed the soul of man. It is 
idle to endeavour to avert the * tyranny of the majority ' by 
making the minority a little larger ; a minority must needs 
be a minority in a world where two and three make five ; 
and the tyranny attributed to a majority merely expresses 
the natural dislike to being beaten. But it is not desirable 
that politics should &31 entirely into the hands of party 
organisers, as may not impossibly happen under the new 
system of single-member constituencies with an extended 
franchise; and it is not desirable that the voter's choice 
should be limited to an alternative of extremes, and that 
politics should become the business or the recreation of 
fiEmatics, adventurers, or intriguers. The question lesolv 



Sect TV.] FBIYILEGES OF THE HOUSE. 129 

itself into a choice of riskfl — ^ihe risk lest party discipline, 
wiiich in a large deliberative assembly is practically necessary 
for the transaction of bnsiness, should be too fiu* relaxed by 
the representation of opinions on a graduated scale ; and the 
risk lest party organisation, drawn too close, should exclude 
firom political life practical men who do not care to see 
opinions pushed to their logical results, and independent men 
who like sometimes to make up their own minds on the 
questions of the hour. 



SfiGTioN rv. 

PRIVILEGES OF THE HOUSE OF COMMONS. 

The privileges of the House of Commons have been the Difficulties 
topic of much legal discussion, and difficulties have arisen, not jeot. 
tinnatoially, in ascertaining the rules of which they consist ; 
for they are only susceptible of legal definition when cast 
in a statutory form, or when they have come into collision 
with Courts of Law. 

Statute Law on the subject is scanty. Privilege exists 
chiefly for the maintenance of the dignity of the House of 
Commona, and it is no wonder that the House thinks itself 
capable of maintaining its dig^ty without the aid of the 
legialatare. Such Statute Law as exists has for its object the 
limitation of the prerogative of the Crown as against the 
House of Commons, and the limitation of the privileges of the 
House of Commons as against private rights. 

There remains the mass of judicial decision, dealing for the 
movt psot with eases in which the Courts and the House have 
eome into conflict, and from this it is not easy to select so 
moch as is interesting and important from a purely legal 
point of view. 

It -will be well therefore that I should make clear at starting 
the topics with which I am going to deal and their con<^ 
section* 



130 THE HOUSE OF COMMONS. [v. 

Offioen First, in order to simplify what follows, it is necessary to 

dure. state that the House possesses certain officers for the general 
conduct of its business; that through these officers its privi- 
leges are enforced, and enforced by process of which the 
course has been under discussion, and the validity admitted by 
Courts of Law. 
PrivileeeB Next, we come to the privileges themselves. Of these, 
demanded. ^^^^ ^^g specifically asserted and demanded of the Crown at 
the commencement of every Parliament. Three deal with 
the relations of the House and the Crown — ^the privilege of 
free speech, of access to the Crown, and of having the most 
favourable construction put upon all their proceedings. One 
deals with the relations of the members of the House and 
other subjects of the realm — ^the privil^^ of freedom from 
arrest. 
PrivUegeB But there are other privileges not specifically mentioned on 
xuMided. this occasion, though regularly asserted and enforced by the 
House. These are, the right to provide for the due constita- 
tion of its own body, the right to reg^ate its own proceedings, 
and the right to enforce its privileges by fine or imprison- 
ment, or, in the case of its own members, by expulsion. 
Diiputes Lastly, we come to the questions of dispute which have 
Hotue and arisen between the House and the Courts, and in these it 
Courts. ^Q^d seem that the House has in the first instance mis- 
conceived the limitations on its undoubted privileges, and has 
then endeavoured to cure its error by an arbitrary assertion of 
exclusive right to define its privilege ; in other words, to 
assume to itself what privileges it pleased. 
ARhby V. Thus it has disputed the legality of a legal act, and treated 
such an act as a contempt ; or again, it has endeavoured to 
Stockdale legalise an illegal act ; and when its right to do these things 
has been disputed, it has tried to settle the question off-haxid 
by a resolution that its privilege covers the case, and that no 
court has jurisdiction to discuss the legality of anything which. 
its vote has ordered. 
This is the issue on which the conflict has turned between 



S6ct.IV.§i.] PBIVILEGES OP THE HOUSE. 131 

the House and the Conrts. It is safe to say that the Courts 
have won the day. 

The only othec question of importance is comparatively Bulee as to 
technical. It relates to the power possessed by the House to ment. 
commit for contempt, without assigning any other cause, or 
any cause at all, in the warrant of commitment, or the return 
to a writ of habeas eorjpus. 



§ I. Officers cfthe Home, and Procedure for Contempt. 

A consideration of the privileges of the House of Commons 
may be assisted by some preliminary words as to the position 
and duties of the Speaker, by whom these privileges are 
claimed and through whom they are enforced ; and forther as 
to the machinery which the House possesses for recording its 
proceedings and for putting its privileges into effect. 

Little needs to be said of the history of the office of The 
Speaker. There can be no doubt that firom the first the 
Commons required and possessed a spokesman, to be their 
medium of communication with the Crown. At any rate, 
from the year 1377 there is a regular succession of Speakers 
described as ' pourparlour ' or ' parlour et procuratour.' The 
fi>rm of election by the House and of approval by the Crown 
seems to have become settled early in the fifteenth century, 
and to have varied but little from the proceedings described 
in an earlier chapter. Aa^e, p. 60. 

The office is one of high dignity. The Speaker takes pre- his pre- 
cedence of all Commoners, not merely by courtesy or by custom, ' 
but by legislative enactment. An act of 1689 provides that i Will, ft 
'the Xioids Commissioners of the Gbeat Seal not being peers 0. ai. g. a. 
shall have and take place next after the peers of the realm 
and the Speaker of the House of Commons.' 

The duties of the Speaker are twofold. He is, firstly, the his duties- 
spokeBinan and representative of the House ; as such he de^ ^TOkes- 
mAJiilti its privileges, communicates its resolutions, its thanks, °>a°» 
its censaresy its admonitions. He issues warrants by order of 

K 7, 



132 THB HOUSE OF COMMONS. [V. 

the House for the commitment of offenders against its 
privileges, for the issue of writs to fill vacancies among its 
members, for the attendance of witnesses, er the bringing of 
prisoners to the bar. The symbol of his office is the mace 
which is laid before him on the table when he is in the Chair, 
and which, borne by the Serjeant-at-arms, accompanies him 
wherever he goes in his capacity of Speaker. 

(i) aa Secondly, the Speaker is the chairman of the Honse, and 

in that capacity he maintains order in its debates, decides 
sach questions as may arise upon points of order, puts the 
question, and declares the determination of the House. 

The Chftir- But the Speaker does not act as chairman when the House 

man of 

Commit- gocs into Committee. The Chair is then taken by the Chair* 
man of Ways and Means, who is chosen at the commencement 

Po«^,p.a35. of each Parliament for the purposes of the Committees of 
Supply and Ways and Means. The member tiius chosen acts 
as chairman for other committees of the whole House, but 
the House retains the power of selecting some other member 
for such other committees. 

Deputy Difficulties have arisen for want of provision for supplying 

the place of the Speaker if he should be temponuily disabled 
by illness or accident £rom discharging his duties. Standing 
orders of the House, passed with the approval of the Crown, 
enable the Chairman of Ways and Means to act as deputy- 

i8 A; 19 speaker on such occasions, and a statute provides for tilie 
^0,0.^ validity of acts required by law to be done by the Speaker, 
but done on such occasions by the deputy-speaker. 

The Speaker is appointed afresh at the commencement of 
every Parliament. It is rare that tiie appointment diould be 
made the subject of a party division ; but, as a matter of fiMt, 
whenever the office falls vacant during the existence of a 
Parliament, the new Speaker is the nominee of the party 
which possesses for the time a majority in the House. Either 
parfy is capable of producing men qualified beyond reproach 
to fulfil the duties of the Chair, and the Speaker of the last 
Parliament is usually accepted by the next without opposition. 



Sect. IV. § I.] PEIVILBGBS OP THE HOUSE. 133 

The impartiaUty which the jadicial duties of a Chairman 
require, makee the Hoose shrink from investing the Speaker- 
ship \rith the character of a party appointment. 

The Speaker, the great officer of the House, may change 
as Parliaments change : he may lose his seat in the House at 
a general election, or be rejected as Speaker by the majority 
of a new Parliament. But under him there are subordinate 
ofBoes which are not affected by dissolution of Parliament. 

The holders of these permanent offices are the Clerk of the 
House and his assistants, the Serjeant-at-arms and his 
deputies. 

The Clerk of the House of Commons has for his principal The Clerk 
duty the record of the proceedings of the House. He is House. 
Appointed for life by the Crown, and is technically styled 
' Under-derk of the Parliaments,' as distinguished from the 
Clerk of the House of Lords, whose proper title is ' Clerk of 
the Parliaments.' He signs all orders of the House, endorses 
the bills sent or returned to the Lords, and reads whatever is 
required to be read in the House. But his chief duty is to 
enter the proceedings of the House, and from these to pre- 
pare the journals, of the nature of which I shall have more to 
say later on. He has two assistants, clerks appointed by the Po9t,^,iffi. 
Crown on. the nomination of the Speaker, and removable 
only upon an address of the House. 

The Serjeant-at-arms enforces the orders, as the Clerk The Ser- 
records the proceedings of the House. He is appointed by the ^^, ^ 
Crown, is the attendant of the Speaker when Parliament is 
sitting, and when it is not sitting may be called upon ^to 
attend her Majesty's person.' 

Inside the House his duties are to attend the Speaker 
entering and leaving the House, to keep order in its pre- 
cincts, to bring to the bar of the House persons who are 
sommoned to attend there, or to introduce to the bar persons 
who are entitled to make communications to the House. 

Outside the House he is charged with the execution of 
warrsnts issued by the Speaker in pursuance of an order of 



134 THE HOUSE OF COMMONS. [V. 

the House for bringing persons in his custody to the bar, for 
retaining them in his charge, or committing them to such 
place of detention as the House may order. 
Prooess fop The process by which the House enforces its privileges is 

enforo6- 

ment of by order to attend at the bar, or by order for the Speaker to 

^" ^^' issue a warrant for bringing the person summoned in custody 
of the Serjeant, or by a like order for warrant of commitment 
for contempt. The powers of the House in this respect were 

lo Q.B. clearly defined by Parke B. in Howard v. Go9set. 

451. ( rphe House has power to institute inquiries and to order 

the attendance of witnesses, and, in case of disobedience 
(whether it has not even without disobedience we need not 
inquire) bring them in custody to the bar for the purpose of 
examination. And, secondly, if there be a charge of contempt 
and breach of privilege, and an order for the person charged 
to attend and answer it, and a wilful disobedience of that 
order, the House has undoubtedly the power to cause the 
person charged to be taken into custody and to be brought to 
the bar to answer the charge : and further, the House, and 
that alone, is the proper judge when these powers or either of 
them are to be exercised.' 

And in construing warrants issued in virtue of these powers 
of the House, it was held that the rule applies ' that nothing 
shall be intended to be out of the jurisdiction of a superior 

^^ P- 453* Court, but that which specially appears to be so.' 

The powers here referred to will require further discussion 
and illustration, but this brief statement of their character 
and the mode of their exercise, may make it easier to under- 
stand the intervening matter which I have to discuss. 

§ %. Privileges of the Souse demanded by the Speaker. 

The privileges of the House of Commons are claimed at the 
commencement of every Parliament, by the Speaker addressing 
the Lord Chancellor on behalf of the Commons. They are 
claimed as 'ancient and undoubted,' and are, through tlie 



IMHBSSMa 



Sect. IV. §3.] PEIVILBGBS OP THE HOUSE. 135 

Chancellor, 'most readily granted and confirmed' by the 
Crown. 

The practice of claiming these privileges dates from the 
reign of Henry VIII \ but the privileges themselves are of 
much older date ; and, so far as they are not afiected by 
Statute, rest upon the common Iaw or the custom of Parliament, 
and not upon any specific grant from the Crown. 

It will be well to consider what are the various privileges 
of the House, whether specified or not in the Speaker's claim ; 
and then, how they are limited or defined by the action of the 
Courts of Law. 

The privileges claimed of the Crown by the Commons are 
first expressed generally as Hheir ancient and undoubted 
rights and privileges ' ; and then ' particularly that their 
persons and servants might be free frx)m arrests and molesta- 
tions; that they may enjoy liberty of speech in all their 
debates ; may have access to her Majesty's royal person when- 
ever occasion shall require; and that all their proceedings 
shall receive from Her Majesty the most &vourable con- 
sfamction.' 

The House of Commons then asks for three things : free- 
dom of the person ; freedom of speech ; and certain rights of 
a merely formal character. With these last one may deal 
80 shortly that it may be convenient to take them out of their 
natural order. 

(a) Formal Privileges. 

The House has asked for, and is entitled to, liberty of 'The beet 
speech in the matter and manner of debate ; it is merely by ^i^^ * ^ 
courtesy that it asks to have the best construction pht upon 
its proceedings. 

The right of access is one which the House enjoys collect- Right of 
ively, when an address to the Crown is to be presented by the 

^ Sir E. May fixes the sixth year of Henry VIII as the oommenoement of 
the praetiee of daimiiig these privileges. Dr. Stubbs, vol. iii. p. 455, points 
oat tliai the claim of access appears first in the records of 1536, and Uiat of 
freedom from arrest in 1541. 



136 THE HOUSE OF COMMONS. [V. 

Speaker, and is thus distinguisliable from the right of each 
individual peer, as an hereditary connsellor of the Crown, to 
have audience of the Sovereign. But the House can commu- 
nicate with the Crown through such of its members as are 
Privy Councillors, and have access to the Sovereign in that 
capacity, and the privilege is only important as a mode of 
giving emphasis to any communication which the Commons 
may desire to make to the Sovereign. 

(b) Freedom from Arrest. 

The other two privileges specially mentioned are of great 
practical importance, and confer rights, not only against the 
Crown, but against the public. 

The first of these is freedom from arrest for the persons 
and servants of members during the continuance of session, 
and for forty days before its commencement and after its 
conclusion. 

ft 

Object of The object of the privilege was doubtless to secure the safe 
1^.^"^ arrival and regular attendance of members on the scene of 
their Parliamentary duties : the privilege itself may periiaps 
relate back to the Saxon rule that such persons as were on 
their way to the ffemot were in the king's peace. It never 
was held to protect members from the consequences of treason, 
felony, or breach of the peace. In 1763 both Houses resolved, 
in the case of Mr. Wilkes, that it did not extend to the writing 
Sess. paper, and publishing of seditious libels, ' and since that time it has 
i83i(ii4)- jj^n considered generally that privilege is not claimable for 
any indictable ofience.' Nor does it prevent a member from 
being committed to prison for contempt of Court. A com- 
mittee of privileges was appointed to deal with the case of 
Mr. Long Wellesley, who had taken a ward in chancery, his 
own daughter, out of the jurisdiction, and had been committed 
for contempt by the Lord Chancellor, Lord Brougham. The 
committee reported that his claim of privilege ought not to 
be admitted. 

But within the limit of civil cases the privilege was made 



■t*^- .. - --Ttr^ii.,.^ ^._^'wf I MIL ■ ■. ' ■ - : ' ^ af'"T"=f. ?yS5swv^ '~ 



Sect. IV. § a.] PRIVILEGBS OF THE HOUSE. 137 

a <mm of hardship to gnitors, for not only was the member's 
person protected firom arrest and his property from legal 
process, but rights of action were held in abeyance, since pro- 
ceedings cotdd not even be commenced against a member or 
bis servant. 

The history of legislation on this subject may be briefly Its legis- 
noted. In 1603 arose the case of Sir Thomas Shirley, aiugtory. 
member of the House, who had been imprisoned in the Fleet. 
The Commons sent their officer to demand his release, and 
on a refusal committed the Warden of the Meet to the Tower 
for contempt. Sir Thomas was after some time released, and 
thereon the Warden was reprimanded by the House and was 
also set free. But a Statute was passed which was at once i Jac. I. 
the first legislative recognition of this privilege, and was also 
some protection to the suitor and to the keeper of the prison. 
It provided that the suitor should not lose his right of action 
because he had once taken his debtor in execution, but that 
the right should revive after the privilege had expired. It 
farther provided that the officer releasing a prisoner from 
meet on claim of privilege, should not be charged in any 
action for allowing his prisoner to escape. 

A practice came into use, not long after Shirley's case, of 
staying proceedings by a letter from the Speaker, in actions 
commenced against members. Not merely arrest of the 
person, bnt distress of goods and the taking of any proceed* 
ings at all in an action against a member was regarded as 
a breach of privilege, unless the member consented to waive 
his right; and a member's servants were held to be covered 
by the privilege of their master. 

To remedy this hardship upon suitors, an Act was passed la & 13 
in I7cx>, providing that suits might be commenced against ^ ..' 
members and their servants in the principal Courts of Law 
and Equity during a dissolution, a prorogation, or an adjourn- 
ment for more than fourteen days, and that during such times 
judgment might be given and goods taken in execution. 
The Act 2 & 3 Anne, c. 18, provided that penalties and 



138 THE HOUSE OP COMMONS. [V. 

forfeitares against privileged persons employed in the revenne 
or in any office of public trust, should not be stayed on ground 
of privilege ; and 1 1 George II, c. 24, extended the effect of 
the Act of William III to proceedings in any court of record. 

But the privilege was not reduced to reasonable limits until 
10 George III, c. 50. This Statute allowed any action or suit 
to be commenced and prosecuted, at any time, against members 
and their servants: and no process thereupon was to be 
stayed by reason of privilege ; only the persons of members 
were privileged from axrest and imprisonment. 

Iti preient Thus the members' servants entirely lost their immunity, 

^' ° * and the members themselves only retained the privilege of 
freedom from arrest for a period which is held to extend to 
forty days before and afber the meeting of Parliament. This 
period was long unsettled by statute or judicial decision, 
though it was generally assumed to include, as well the 
duration of a Parliament, as the forty days before and after 

iExch.430. ft Parliament sat. It was held in Mr. Duneombe's case, 
that long custom, though unexplained, had thus fixed the 
extent of the immunity. The explanation does not seem 
very difficult. The privilege was designed to secure the 
protection of a member * eundo, morando, et exinde redeundo ' ; 

Macna ^^^ ^^^ notice of summons required was forty days, and this 

^^^^^r*** period would therefore be supposed to cover the utmost time 
required by a member for coming to a Parliament and re- 
turning home. 

It should be added, that privilege of Parliament operates 
to take a member out of custody if he is elected while in 
custody, always supposing that he is not in custody for an 
indictable offence or for contempt of Court ^. 

Akin to the privilege of freedom from arrest is the privi- 
lege, now always waived, of resisting a subpoena to attend as 

33 & 34 ft witness ^ ; and the privilege, now confirmed by statute, of 

Vict. 0. 77. exemption from liability to serve on juries. 

' 74 Com. Jonr. 44 ; 75 Com. Jour. 330. ' May, 148. 



Scct.IV.§3.] PBIVILEGBS OP THE HOUSE. 139 

(c) Freedom of Speech. 

This privilege, though claimed as resting upon the ancient 
custom of Parliament, has been confirmed by judicial and 
legislative sanction on divers occasions. 

In 1397 the Commons adopted a bill laid before them by ao Rie. II. 
one Haxey to reduce the charges of the royal household. The Haxey's 
king rebuked the Commonfl for discussing such matters, and '^ 
demanded the name of the introducer of the bill. The House 
gave up the name of Haxey with many expressions of regret 
for his conduct. He was condemned in Parliament as a 
traitor, and was saved from death only by the interposition 
of Archbishop ArundeP. 

In the first year of Henry IV, Haxey petitioned the King 
for the reversal of this judgment, as being * encontre droit et 
la curse quel avoit este devant en Parlement,' and it was 
reversed by the King with the advice and assent of the Lords 
spiritual and temporal'. 

This amounted to a judicial recognition of the privilege by 
the Crown and House of Lords ; and the Commons further 
petitioned the King on their own behalf j to reverse the judg- 
ment ' si bien en accomplissement de droit come pur salvation 
des libertes de les ditz Communes ^' The King assented to 
their petition, and the judgment was held to be 'wholly 
reversed, repealed, annulled, and held of none effect.' 

In Strode's case, a prosecution was commenced in the Stan- Strode's 
nary Court against a member who had introduced certain 
bills for the regulation of the tin mines in Cornwall. He 
was fined and imprisoned ; aiid thereupon an Act was passed 
declaring that not only as regarded Richard Strode, but as 
regarded all members of that or any future Parliament, legal 
proceedings *for any bill, speaking, reasoning, or declaring 4Hen. 
of any matter or matters concerning the Parliament, to be 

^ TBbhzey would Beem to haye been a clerical prootor attending under the 
pr mw m nienteM clause. 

• 3 Rot Par. 430. » Ibid. 434. 



1 



140 THE HOUSE OF COMMONS. [V. 

commnned or treated of, should be utterly void and of none 
effect.' 

TheTadon Yet the Tadors and the first two Stnarts were strongly 

1^^^^^ diflpoeed to limit the fireedom of speech and matter of de- 
liberation in Parliament. Members whose speech in matter 

I Pari. or manner was obnoxious to the Court were summoned before 
'^^' the Council, committed to prison, or forbidden to attend Par- 
liament till further notice. And the royal view of the extent 
of the privilege is thus defined by the Lord Keeper in reply 
to the Speaker's petition. * Privilege of speech is gfranted, 
but you must know what privilege you have ; not to speak 

1593. every one what he listeth or what cometh in his brain to 
utter that ; but your privilege is, aye or no. Wherefore, Mr. 
Speaker, her Miyesty's pleasure is, that if you perceive any 
idle heads that will not stick to hazard their own estates: 
which will meddle with reforming the Church, and trans- 
forming the Commonwealth, and do exhibit any bills to 
such purpose, that you receive them not, until they be 
viewed and considered by those who it is fitter should con- 
sider of such things and can better judge of them.' 

The line taken by the Tudor and Stuart sovereigns on thin 
question of freedom of speech, shows that the House had to 
struggle not merely for latitude of discussion, but for the 
existence of its initiative in l^^lation, and in deliberation. 
The Crown maintained and the House denied that the 
Commons were summoned merely to vote such sums as were 
asked of them, to formulate or to approve legislation or topics 
of legislation submitted to them, and to give an opinion on 
matters of policy if, and only if, they were asked for one. A 
standing protest against this contention on the part of the 
Crown survives in the practice, at the beginning of every 

Ante, Session, of reading a bill for the first time before the Queen's 

PP- 5^ 3- Speech is taken into consideration. 

1639. The proceedings in the ELing's Bench against Eliot, HoUis, 

and Valentine for seditious speeches in Parliament and for 
an assault upon the Speaker, are the last instance of legal 



Sect. IV. §3.] PBIVILEGBS OF THE HOUSE. 141 

proceedings being taken against members of the Honse in EUoVb 
oontravention of their privilege of free speech. A conviction 
was obtained against these men upon the charges made 
against them, bat in the following reign the judgment was 
leveised in the Honse of Lords npon writ of error. One cause 
of error stated was that woids spoken in Parliament could 
onlj be judged in Parliament and not in the King's Bench ; 
another was that two offences were dealt with by the judg- 
ment of the King's Bench, the assault on the Speaker, and 
the utterance of seditious words in Parliament ; and it was 
alleged that even if the assault was proper to be dealt with by 
the Court of Song's Bench^ the words spoken in Parliament 3 State 
could not be dealt with out of Parliament. ^^^ '^' 

The Commons upon this occasion thought it well to resolve 
that the Act of Henry VIII was not a special Act passed for 
the benefit of Strode, but a general Act declaring and con- 
firming the existing privileges of the House. 

And, finally, the Bill of Bights re-asserts the privilege, i Will. & 
enacting ^ that the freedom of speech and debates or proceed- ^ ^'^ 3 
ings in Parliament ought not to be impeached or questioned 
in any Court or place out of Parliament.' 

But though we find no instances after the Revolution of Freedom of 

proceedings taken in any Court at the instance of the execu- ^TiSt^ 

tive for words spoken in Parliament^ yet the free speech and o^'^^'^y- 

action of members was not unfrequently interfered with, in 

the case of such as had any oflEice or commission to lose, by a 

minister like Walpole, or a king like George III, who desired 

to use all means in his power for keeping in his service a 

comiMust and obedient majority. It is quite in accord with 

our modem ideas that a subordinate member of a ministry 

dionld cease tt hold a political office if he persistently opposes 

the i>olicy of his leader : but Walpole and George III dealt 

with non-political offices, and deprived officers in the army 

of their commissions for words spoken or votes given in Par- 

Uament. The last case of this kind was that of General 

Ckmway in 1764^ who, for opposing the ministry of George 



142 



THE HOUSE OP COMMONS. 



[V. 



Grenville on the qaesidon of general warrants, was dismissed 
from the King's service, not only as a Groom of the Bed- 
chamber, but also as Colonel of a regiment. *My overt 
acts,' he says, ' have been only voting as any man might from 
judgment only in a very extraordinary and serioos question of 
personal liberty^.' 

The practice was very shortly afterwards discontinued ; in. 
fact Burke claims credit to the Rockingham ministry of the 
following year for having ' abolished the dangerous and un- 
constitutional practice of removing military officers for their 
votes in Parliament ^' 

Speech and action in Parliament are then free and unques- 
tioned, and out of this privilege have grown two matters of 
practice with regard to the presence of strangers in the 
House, and the publication of its proceedings and debates. 

(d) Freedom cf Speech in relation to the Exclusion ofStrangen, 

The House has always claimed and enjoyed the right to 
ducUng exclude strangers and to debate with closed doors, and this 
■trftng«rg. f^j. ^^^ reasons. The first was the inconvenience to which 
in former times members were put when, owing to the ar- 
rangements of the House, it was possible for strangers to 
come so far within the boJy of the House, that, on one 
occasion at least, a stranger was counted in a division ^. 

The other reason was the possible intimidation which 
might be exercised by the crown if reports were made of the 

^ Walpole*B Letters, iv. 229. 

' Short Aooonnt of a late Short Administration. 

* Com. Jour. 33. 212. After a divinon on motion made and qaestian pat, 
' That Mr. Speaker do now leave the chair,' ' it having happened that amoi^ 
the members who were coming in on the division a stranger who had con- 
tinned in the lobby after it was cleared had come in, and was told as one of the 
Noes, several members objected to the validity of the division, and insisted 
that the question ought to be put again and the sense of the House taken. 
Mr. Speaker immediately on declaring the numbers had ordered the 
doors of the House to be locked, in order that no member might go fiorth. 
The Stranger was then brought to the bar and examined, and it appearing thet 
what he had done was from ignorance and inadvertency, and without ^aaj 
intention of passing for a member on a division, and being known to sevenJ 
members as a man of good character, he was for the present ordered to be 
taken from the Bar.' He was afterwards dismissed with a caution. 



Grounds 
for ex- 



1771. 



Sect. IV. §3.] PBIVILEGES OF THE HOUSE. 143 

speech and action of members, in days when freedom of 
debate was not fnlly recognised as a privilege of the House. 

The custom was, that if a member took notice of the Resolution 
presence of strangers, the Speaker was obliged to order 
them to withdraw. The custom was found in the year 
1875 to work inconveniently: certain members who were 
comiected with the Press thought it wrong that reporters 
shoidd be present only on sufferance, and endeavoured to 
reduce the rule to an absurdity by frequent notice of the 
presence of strangers. The House therefore resolved, after 
some discussion, ' that if, at any sitting of the House or in 
Committee, any member shall take notice that strangers are 
present, Mr. Speaker, or the Chairman (as the case may be), 
shall forthwith put the question that strangers be ordered 
to withdraw, without permitting any debate or amendment : 
provided that Mr. Speaker and the Chairman may, whenever 
he think fit, order the withdrawal of strangers from any part 
of the House ^.' 

The role does not seem to effect the purpose of those whose 
conduct procured its passing, for it rather curtails the right 
of individual members to dear the gallery than alters the 
position of the representatives of the Press. 

(e) Freedom cf Speech in relation to the Publication ofDebatee. 

Following upon the power to exclude strangers, and a part GroDnds 
of the general right of privacy in order to secure freedom of Ung publi- 
debate, comes the right of the Commons to prohibit the ^**®^' 
publication of proceedings in their House. 

The House of Commons in the Long Parliament was the first 
to forbid a member ' to give a copy or publish in print any- 
thing that he shall speak here without leave of the House ^': 
and subsequently printers were warned to give account of 
the communication to them of matters which took place in 
the House \ 

Accounts of the votes and proceedings were ordered in 

' Hsnaard 124, p. 55. ' Com. Jour. 7. 209. ' Ibid. 220. 



144 THE HOUSE OF COMMONS. [V. 

Beporting i68o to be printed tinder the direction of the Speaker, bat 
century, the desire to maintain the secrecy of debate found stronger 
expression after the Revolution, and was made the matter of 
frequent resolutions forbidding the publication of proceedings 
on pain of incurring the penalties of breach of privilege. 
There was an interesting debate on this subject in 1 738, daring 
the ministry of Sir Robert Walpole, when the leaders of the 
three great parties in the House took part in the discussion. 

Walpole held that it was impossible to be secure against 
misrepresentation if the report of debates was allowed. 
Wyndham, the leader of the Tories, thought that 'the publie 
ought to be able to judge of the merits of their representa* 
tives.' Polteney, who led the malcontent Whigs and pro- 
fessed to represent the popular party, took the least popular 
ground, and said plainly that he would not be ' made aocooni-* 
able without doors for what he said within ^.* 

The fear of misrepresentation was not unfounded : news- 
paper reporting was in its infancy : nor was there any great 
desire to represent &irly what was said by politicians whose 
opinions were opposed to those of the reporter: the best 
reports of the time are evidently £etf from Mthfiil reproduo- 
tions of what passed in the House. The resolution of the 
House in 1738, the result of the debate just described, con- 
demned the publication of any accoont of its proceedings as 
'a high indignity and a notorious breach of privilege' ; but 
in spite of this, the practice of reporting continued. 

Down to the year 1771 such accounts of debates as were 
made public appeared in magazines which came out monthly 
or quarterly, and after the resolution of 1738 the Hoase and 
the speakers figured under feigned names. But in 1771 
notes of debates, by no means carefiil as to accuracy, began 
to appear in the daily journals, and the names of the speakers 
were attached sometimes with comments and nicknames of 
an offensive sort. Thereupon the House entered upon a 
serioos and complicated conflict with the Press. 

1 Pari. Hiflt. z. 81 1. 



Sect. IV. §2.] PEIVILEGES OF THE HOUSE. 145 

In the course of a series of attacks upon printers and pub- Conflict 
Ushers, the Commons sent a messenger into the city to arrest House and 
a printer of debates: the printer sent for a constable and^^^'^^T'* 
gave the messenger into custody for assaulting him in his 
own house. All parties went to the Mansion House, where 
ihe Mayor and two aldermen, Wilkes and Oliver, discharged 
the printer, holding, that by virtue of the city charter, a 
warrant of the House was of no force within the City unless 
backed by a city magistrate: but they committed the 
messenger for an assault, allowing him to go free on bail. 
The House of Commons sent for the Lord Mayor and the 
two aldermen, for the Lord Mayor's clerk and the book of 
recognizances. They erased from the book the entry as to 
the messenger's recognizances, and committed the Mayor and 
aldermen to the Tower. A House which could unwarrant- 
ably interfere with the procedure of a court of justice, was 
not unlikely to disregard the opinion or the interests of 
the public. Nevertheless, it was frightened by the dis- 
play of feeling exhibited by the people of London on behalf 
of the City officers, and this was the last occasion on 
which its privilege in this respect was asserted. With the 
impunity accorded to reporters, the practice of reporting has 
improved, and the House, sensible of the advantages which 
it derives from a full and clear account of its debates, has 
given increased &cilities to those who report them. 

We are accustomed, therefore, to be daily informed, through- 
out the Parliamentary Session, of every detail of events in 
the House of Commons : and so we are apt to forget two 

things. 

The first is, that these reports are made on sufferance^ for Beporting 

Oxe House can at any moment exclude strangers and clear the guffennce. 

reporters' gallery ; they are also jmblisAed on sufferance, for 

the House may at any time resolve that such publication is 

0, breach of privilege and deal with it accordingly. 

The second is, that though the privileges of the House 

eonfer a right to privacy of debate, they do not confer a corre-^ 



146 THE HOUSE OP COMMONS. [V. 

Limits to gponding right to the publication of debate. Apart firom 

pabliflh powers conferred by Statute, the right of the House of 

Commons to publish its proceedings, otherwise than for the 

use of its members, would be limited by the common law 

rules as to defamation of character ; and it would be no answer 

to an action for libel brought against the publisher, that the 

libellous matter was a part of a debate in the House of Com- 

Stockdale mons, or was a part of a report made for the use of the House, 

Bft^^' and printed and published by its order. Still less is a private 

9A&E. I. member entitled to claim privilege for the publication of a 

speech delivered within the walls of the House. Within 

those walls he may say what he pleases, and is protected by 

the general privilege of the House ; but if he chooses to 

circulate outside the House statements made within it, he 

does so at his peril, and if they contain defamatory matter -he 

will be liable to proceedings for libel. 

The extent to which the publication of Parliamentary pro- 
ceedings has, in this respect, been protected by judicial decision 
or statutory enactment, may thus be tra<!&d. 

I Saund. It was held in LaiUs v. King that an action would not lie 
I ^i. 

for defamatory matter contained in a petition printed and 

delivered to members, this being agreeable to the course and 
proceedings of Parliament. And if it is permissible to a 
private individual to circulate in the form of a petition among 
members that which would be libellous if published otherwise, 
it follows, as of course, that no words spoken by a member in 
the course of Parliamentary proceedings, or papers printed 
and circulated by order of the House among its members^ 
would be actionable. 
9 A. &E. I. But in Stockdale v. Hansard, this principle was not allowed 
to extend to publications which were not desigfned for the 
exclusive use of members. In that «ase, the House of Com- 
mons ordered the printing and publishing of copies of certain 
reports in such numbers, as that some copies should be avail- 
able for sale to the public. One of these reports contained 
matter defamatory of the plaintiff. He sued the publisher^ 



Sect IV. §2.] PRIVILEGES OP THE HOUSE. 147 

and Lord Denman ruled, and the Court of Queen's Bench Privilege 
uphdd his ruling, that the House could not by its order gjjige defa- 
legalise *the indiscriminate publication and sale of all such™**^^^* 
papers as the House may order to be printed for the use of its 
members.' 

The controversy between the House and the Court of 

Qaeen's Bench, of which this decision forms a part, extended 

to the general question of the relation of Courts of Law to 

questions of Privilege. But the case does fix the limits of 

the light of the House to publish its proceedings on matters 

connected therewith, and settles that such publication, if 

defamatory, is actionable unless it is confined to members of 

the House. Such publications were relieved from this liability 

by 3 & 4 Vict. c. 9, which enacts that a certificate from any 

one of certain officers of either House, verified by affidavit, 

and stating that the publication was made by authority of the 

House of Lords or House of Commons, should be an immediate 

stay of any civil or criminal proceedings taken in respect of 

defamatory matter contained in the publication. 

Thus &r it was settled that statements published by But a fair 
authority of either House, though injurious to the character 'riri^ed 
of an individual, would not give a cause of action for libel. 
In 1868 a further question arose. The editor of a newspaper, 
in a fSur report of proceedings in Parliament, made with no 
hostile or malicious intention, but solely with a view to his 
own profit, published matter defamatory of an individual. 
The publication could not be said to be authorised by Parlia- 
ment except in so far as the exclusion of reporters at the will 
of the House might have made such a report impossible. It 
was held by the Court of Queen's Bench, that such publi- l. R. 
cations were lawful, and that while * honestly and faithfully ^ ^' ' ^^' 
canied on, those who publish them will be free from legal 
responsibility, though the character of individuals may inci- 
dentally be injuriously affected.' Walter. 

But such publication is carefrdly distinguished from the 
pablishing of his speech by an individual. 'There is ob- 

L 3 



148 THE HOUSE OF COMMONS. [V. 

viously/ Bays Cockbum C. J., *a very material difference 
between the publication of a speech made in Parliament for 
the express purpose of attacking the conduct of an individual, 
and aftenoard% pttblisAed with a like jpurpoie or effect^ and the 
L. R. 4. faithful publication of Parliamentary reports in their entirety, 
p. 85. with a view to afford information to the public, and with a 
total absence of hostile intention or malicious motive towards 
any one.' 

§ 3. Tnvilege^ of the Hou%e not demanded by the Speaker. 

So far I have dealt with those privileges of the House 
which are demanded by the Speaker and granted by the 
Crown at the commencement of each Parliament. But there 
are other privileges which would seem to be considered in- 
herent in the House, which are at any rate undoubtedly 
exercised by it, though they are not specifically claimed from 
the Crown. 

(a) Right to provide for its proper Constitution. 

One of these privileges is the right to provide for the 
proper constitution of the body of which it consists, by the 
issue of writs when vacancies occur during the existence of 
a Parliament; by enforcing disqualifications for sitting in 
Parliament; and, until recently, by determining disputed 
elections. 
Filling of (1) When a vacancy occurs in the House from any cause 
which legally vacates a seat, or when a member is returned 
for two places and makes election which he will serve for, a 
warrant is issued by the Speaker, in pursuance of an order of 
the House, to the clerk of the Crown in Chancery, or, in the 
case of a seat in Ireland, to the clerk of the Crown in Ireland, 
for a writ to be issued for the return of a member to supply 
the vacancy. The Speaker's warrant is issued by order of the 
House; it consequently could not be issued out of Session ; but 
this defect is supplied, to a great extent, by a series of 
Statutes which provide that the Speaker should issue his 



vacancies. 



^ — 5! 



Sect IV. § 3.] PEIVILEGES OF THE HOITSB. 149 

warrant, subject to certain formalities and restrictions, if a 
member shonid vacate his seat during the recess by death, by 
elevation to the peerage, by bankruptcy, or by the acceptance 
of office other than those formal offices which members take, 
in order to effect a resignation of their seats in Parliament^. 

(3) As will be presently seen, the House has given over to Notice of 

the Law Courts the right to determine controverted elections ; catiML^' 

that is to say, elections which are called in question (m the 

ground that a candidate, otherwise properly qualified for a 

seat, has been returned in an informal manner, or by persons 

who were not entitled to vote, or whose vote was procured by 

improper inducements. But it retains the right to pronounce 

at once on the existence of legal disqualifications in those 

returned to Parliament, and will declare a seat to be vacant, 

if the member returned is subject to such disqualification, 

without waiting for the return to be questioned by persons 

interested in the matter. The case of O'Donovan Rossa, 

February 10, 1870, of John Mitchel, February 18, 1875, of 

Michael Davitt, February 28, 1882, are instances of the 

exercise of this right by the House of Commons. 

The case of John Mitehd, who was twice elected, illustrates Ante, p. 78. 
best the action of the House in such matters. In the first 
instance, no petition was lodged, and the House declared the 
seat vacant. On the occasion of his second election, a petition 
was lodged, and the seat claimed by the other candidate, and 
the House allowed the disqualification to be determined by 
the Coorte ; but it does not follow that the House was bound 
to await the decision of a Court of Law. 

(3) The right to determine questions of disputed elections. Trial of 
claimed and exercised by the Commons from 1604 to 1868, r^torns. 
was assigned by 31 & 32 Vict. c. 125 to the Court of Common 
Pleas, and is now exercised by the Queen's Bench Division of 
the High Court. The claim of the House to jurisdiction in 



' Tlio StatnteB are — as to death or peerage, 24 Geo. Ill, c. 26 ; as to office, 
ai & 23 Vict. o. Tio ; as to bankruptcy, 46 & 47 Vict. c. 52, s. 33 ; as to certain 
formalitiea. 36 Vict. 0. ao. 



150 THE HOUSE OP COMMONS. [V. 

this matter was somewhat doabtfiil, though it was exercised 
without question, if not in a very satisfEustory manner, for 
more than ^50 years. Orig^inally the writ addressed to the 
sheriff was returnable to Parliament : the Act of the 7th 
7 Hen. IV, Henry IV provided that it should be returned to Chancery, 
^' ^' but disputed returns were decided during the fourteenth and 

fifteenth centuries on the rare occasions when they arosej by 
the King, assisted by the Lords, though an Act of 1410 
authorised the Judges of Assize to hear them. 

In the reign of Elizabeth the Commons claimed the right ; 
in 1604 they insisted upon it. The case arose upon a disputed 
Fortescue retum for the county of Bucks, and the proceedings in that 
Goodwin. ^^^^ *^® worth noting^. James I, in the proclamation for 
calling his first Parliament, took upon himself to admonish 
all persons concerned with the election of knights of shires, 
that, among other things, they should take express care that 
no bankrupt or outlaws were elected ; he further announced 
that all returns should be made to the Chancery, and that if 
such returns were contrary to the tenor of his proclamation, 
they ' should be rejected as nnlawAil and insufficient.' 

Sir Francis Goodwin, an outlaw, was returned for the county 
of Bucks. On the retum of his election being made, it was 
refused by the clerk of the Crown on the ground of the out- 
lawry. The clerk issued a new writ on his own authority, 
and Sir John Fortescue was returned. 

The House inquired into the matter, and having examined 
the clerk of the Crown, resolved that Goodwin was duly 
elected, and ordered the indenture of his retum to be filed in 
the Crown office. 

The Lords first took the matter up, and asked an expla- 
nation of the Commons ; the Commons refused to discuss the 
question. A message then came from the Lords that the 
King desired the two Houses to confer upon the election. 
The Commons thereupon asked access to the King, and stated 
the grounds of their action. The Eling asserted that returns 

^ Parliamentary History ; 998 et aq. 



Sect. rV. § 3.] PRIVILEGES OF THE HOUSE, 151 

* being all made into the Chancery are to be corrected and 
reformed by that Court only into which they are returned,' 
and he desired the House to hold a conference with the 
Judges. This, after a long debate, the House determined not 
to do, but submitted an argumentative memorial to the King, 
meeting his objections and alleging precedents for the right 
tiiey claimed. It is noticeable, that of the five precedents set 
forth, two only are cases of disputed returns, two are cases of 
disqualified persons being returned, and one a case of a member 
being returned for two places. 

The King was not satisfied with the answer of the House ; 
he still desired a conference between the Commons and the 
Judges. To this the Commons reluctantly assented ; a con- 
ference took place before the King and council, and the King 
in the end admitted the right of the House to be a court of 
record and judge of returns, though he claimed a corresponding 
jmisdietion for the Chancery ; and he suggested as a compro- 
mise, that the elections of Fortescue and of Goodwin diould 
both be held void and a new writ issued. This was done, and 
the right of the Conmions was not afterwards questioned nor 
tliat of the Chancery asserted K 

For some time disputed returns were decided by a Committee Modes of 
of Friyileges and Elections nominated by the House. This 
became an open committee of the whole House after 1672, 1^.3^. 
and finally, in the time of Speaker Onslow, the confidence felt i7^i- 
in him caused the parties to these suits to ask a trial at the 
bar of the House. 

It would have been difficult to find a worse tribunal. As Trial at 
the trial was before the whole House, no single member felt 
any individual responsibility. The judges were a large and 
fluctuating body, wanting alike in the training and the in- 
clination to act judicially. In fiict, a disputed return was 
settled by a party division. The closing struggles of Walpole's 

^ It if proper to note here a distiiiction between the claim of the Chancery, 
in the eaae of Forteeoue and Groodwin, to adjadioate upon a dispnted retuniy 
and the elaim of the GhanceUor, Lord ShafteBbory, in 167a, to issue write to 
01^17 yacaneies during a recess without a warrant from the Speaker. 



152 THE HOUSE OP COMMONS. [V. 

minisiry turned, not on his foreign or domestic policy, bat 
on votes of the House taken on election petitions. 'Last 
Friday,' says Horace Walpole, * we carried a Cornish election 
Dec. 17th, . . . Tou can't imagine the zeal of the young men on both 
sides.' * Tuesday, we went on the merits of the Westminster 
election, and at ten at night divided and lost it. They had 
220, we 21 6 ; so the election was declared void. We had forty- 
one more members in town who would not, or could not, come 
down. The time is a touchstone for wavering consciences. 
All the arts, money, promises and threats, all the arts of the 
former year are applied, and self-interest operates to the aid 
of their party and the defeat of ours.' Finally, the loss of the 
Chippenham election petition determined Walpole to resign. 
Under the To remedy this state of things, Mr. Grenville, in 1770, 
j^^^ ^ introduced and carried the Act known as the Grenville 
Act, at first a temporary measure, but afterwards made 
permanent. This Act transferred the decision of disputed 
returns from the House to a committee, selected (roan a list 
chosen by ballot, of forty-nine members, from which list the 
petitioner and sitting member struck out names alternately 
until the number was reduced to thirteen. Each party nomi- 
nated an additional member, and the case was tried by this 
tribunal, to which was given the power of administering an 
oath. No appeal lay to the House, whose privileges in this 
respect were henceforth limited by the operation of the 
Statute. The committee was a more responsible tribunal 
than the House at large ; it had a better chance of arriving 
at an impartial decision^ and the power of administering an 
oath enabled it to obtain evidence on which it might rely : 
but its members could not fail to be interested on parfy 
grounds in the result of their decision, and being selected by 
lot, they had not necessarily any trained judicial capacity. 
The committee which determined these questions was dimi- 
nished in number, and the mode of its appointment altered 
by Sir R. Peel's Act, 4 & 5 Vict. c. 58, and again by 11 & 12 
Vict. c. 98. 



mwi^ ■ : ^ — — iw" ■■#■■ «■! ■■ li^s—^ ^:'« ■ J ^ — ^ 



Sect. IV. § 3.] PBTYILEGE8 OF THE HOUSE. 153 

But in 1868 the House adopted the only course by which a Under the 
really satisfactory decision of controverted elections could be m^toy 
attained, and handed them over to the Courts of Law. The Elections 
rules for their trial are now to be found in the Parliamentary 
Elections Act, 31 & 32 Vict. c. 125, and the amending Act, 
42 & 43 Vict. c. 75* ^6 petition is presented, not to the House, 
but to the High Court of Justice ; the trial is conducted, not by 
a committee of the House at Westminster, but by two Judges 
of the High Court in the borough or county of which the 
representation is in issue. The Judge certifies his decision to 
the Speaker, and the House, on being informed of the certi- 
ficate by the Speaker, is required (sect. 13) to enter the same 
upon the Journals, and to give such directions for confirming 
or altering the return, or for the issue of a new writ, as the 
form of certificate may necessitate. 

(b) S^At to the exclusive cognizance of matters arising within 

the House. 

Blackstone lays it down as a maxim upon which the whole 
law and custom of Parliament is bajsed ' that whatever matter 
arises concerning either House of Parliament ought to be 
examined, discussed, and adjudged in that House to which it 
relates, and not elsewhere.' 

This statement cannot be accepted without certain reserva- Limits of 
tions. It is not true to say that because a matter has arisen 
concerning the House, and has been adjudged within the 
House, such a matter cannot be considered elsewhere, if it 
affects rights exerciseable outside and independently of the 
House. It is strictly true to say that the House has the 
exclusive right ' to regulate its own internal concerns,' and Extent of 
that, short of a criminal offence committed within the House 
or by its order, no court would take cognizance of that 
which passes within its walls. 

The best illustration of this statement is the recent case of 12 Q. B.D. 
Bradlaugh v. Gossett. In that case, the plaintiff complained 
that having been elected and returned member for the borough 



154 THE HOUSB OF COMMONS. [V. 

of Northampton, he had not been allowed to take the oath 
29 & 30 required by the Farliamentaiy Oaths Act, and that, by a reso- 
9- {|;|^j[qi^ q( j}^Q House, the Serjeant-at-arms had been ordered 
'to exclade Mr. Bradlaugh firom the House until he shall 
eugage no further to disturb the proceedings of the House/ 
The disturbance in question arose from the attempt of Mr. 
Bradlaugh to take the oath which the law required him to 
take, and which a resolution of the House prevented him 
from taking. The plaintiff asked the Court to declare the 
order of the House to be void, and to restrain the Serjeant-at- 
arms from carrying it into effect. 

The Court held that it was not concerned with the. inter- 
pretation which the House of Commons for the regulation of 
its internal procedure chose to place upon a statute ; and that 
the House, having power of exclusion, had power to effect 
such exclusion by the necessary force. The law on the subject 
Bradlaugh is very clearly set forth in the judgment of Stephen J. 
12 Q^B^D. * I^ order to raise the question now before us, it is necessary 
^^' to assume that the House of Commons has come to a resolution 

inconsistent with the Act ; for, if the resolution and the Act 
are not inconsistent, the plaintiff has obviously no grievance. 
We must of course &ce this supposition, and give our decision 
upon the hypothesis of its truth. But it would be indecent 
and improper to make the further supposition that the House 
of Commons deliberately and intentionally defies and breaks 
the Statute-law. The more decent, and I may add the more 
natural and probable supposition is, that, for reasons which 
are not before us, and of which we are therefore unable to 
judge, the House of Commons considers that there is no 
inconsistency between the Act and the B^solution. They 
may think there is some implied exception to the Act. They 
may think that what the plaintiff proposes to do is not in 
compliance with its directions. With this we have nothing 
to do. Whatever may be the reasons of the House of Commons 
for their conduct, it would be impossible for us to do justice 
without hearing and considering those reasons ; but it would 



Sect. IV. §3-] PBIVILEGES OF THE HOUSE. 165 

be equally impossible for the House, with any regard for its 
own dignity and independence, to suffer its reasons to be laid 
before us for that purpose, or to accept our interpretation of 
the law in preference to its own. It seems to follow that the 
House of Commons has the exclusive power of interpreting 
the statute, so far as the regulation of its ovm proceedings within 
its aton walls is concerned ; and that, even if that interpretation 
should be erroneous, this Court has no power to interfere with 
it directly or indirectly.* 

The point at which Courts of Law will enter upon a dis- Courts take 
enssion as to the limits of privilege, and the effect of resolutions anceof ^^ 
of the House outside its walls is a matter for separate con- J^* " 
gideration. But the Judges in the case referred to, state, as within the 

... • HouBi©, 

clearly as it is possible to state a legal proposition, that they 

would take cognizance of nothing short of a criminal offence, ^ p n 

* which was done within the walls of the House.' p. 283. 

It should be noted that the Courts have more than once 
intimated that a crime committed in the House or by its except it 
order would not thereby be considered outside their juris- 
diction* 

In the case of Sir John Eliot and others above referred to. Ante 
who were convicted of seditious speeches in Parliament and of ^' 
an assault upon tie Speaker^ the House of Lords, reversing the 
judgment upon error, does so on the ground that two distinct 
offences were included in one judgment, and that one of these 
offences, the alleg^ seditious speeches, was not cognizable by 
the Court of King's Bench. But it was not thereby decided 
that an assault upon a member of the House, committed 
within its walls, might not be dealt with in a Court of Law ; 
and Lord Ellenborough, in Burdett v. Abbott ^ guards himiself la Ea«t, 
by saying that it will be time to consider such a case when ^ ^' 
it arises. 

And lastly, Mr. Justice Stephen says ^ that he knows of no 
authority for the proposition that an ordinary crime committed 
in the House of Commons would be withdrawn &om the ^^Q- B. D. 
ordinary course of criminal justice.' 



156 THE HOUSE OF COMMONS. [V. 

(c) Power of injiiciing punisAment for breach of Privilege. 

The House is invested, as we have seen^ with the exelasive 
power of regulating its own procedure and adjudging matters 
which arise within its walls. It follows, that the House must 
possess some power of enforcing its privileges in this respect, 
and of punishing those who infringe them. 

Commit- The common mode of punishment is by commitment to 
prison in the custody of the Serjeant-at-arms ; and the offences 
for which such punishment is inflicted may be generally 
described as disrespect to any member of the House, as such, 
by a person not being a member; disrespect to the House 
collectively, whether committed by a member or any other ; 
disobedience to orders of the House, or interference with its 
procedure. 

Fine. In former times the House of Commons has imposed fines 

for breaches of privilege, but the practice has long been dis- 
continued, except in so far as the payment of fees as a condition 
precedent to release from imprisonment partakes of the nature 
of a fine ^. 

Eipulsion. In the case of its own members, the House has a stronger 
mode of expressing its displeasure. It can by resolution 
expel a member, and order the Speaker to issue his warrant 
for a new writ for the seat from which the member has been 
expelled. But it cannot prevent the re-election of such a 
member by declaring him incapable of sitting in that Par- 
liament. In attempting to do this, in the case of Wilkes, 
the House had ultimately to admit that it could not create 
a disqualification unrecognised by law^. 

But expulsion is a private matter, affecting the composition 
of the House itself, and amounts to no more than an expression 
of opinion that the person expelled is unfit to be a member 
of the House of Commons. The imposition of a fine would 
be an idle process unless backed by the power of commit- 

> May, Pari. Practice, 114. * Pari. Hist. zzii. 1407. 



Sect.IY. §3.] PRIVILEGES OP THE HOUSE. 157 

ment. It is, then, the right of commitment which becomes, 
in the words of Sir E. May, 'the keystone of Parliamentary 
privilege.' It remains to consider how it is exercised and by 
what right. 

The officer of the House for the purpose of these proceedings Mode of 
for contempt is the Seijeant-at-arms. The mode of his m«Q™^ 
api>ointment has been already described, and his daties and 
the way in which they are discharged. 

When a person is summoned to the bar of the House, he 
may purge himself of his contempt by an apology, or he may 
be let off with a reprimand, or he may be committed to 
prison ; or, in the case of a flagrant contempt, the person 
guilty may be committed to prison without being previously 
brought into the presence of the House or given an oppor- 
tunity of apologising. 

But the power of the House to punish in this manner is Thelimitof 
limited by the duration of the Session ; prorogation releases J^^.^**^ 
prisoners committed by its order, whether or no they have 
paid their fees. The House cannot therefore imprison for any 
fixed term ; if it did so, and a prorogation occurred before the 
conclusion of the term, the prisoner would be entitled to a 
discharge by a writ of habeas corpus. 

The origin of this power of commitment for contempt has 
been variously stated. 

It has been claimed for the House as a right inherent in Grounds of 
every Court of Record ; but there is much discussion as to "(Mnmit. 
whether the House is or is not a Court of Record. 

In the argument in the case of Fortescue and Goodwin, 
and in the debate on Floyde's case, the House vehemently 
contended that it was a Court of Record^, and in the last That the 

XT 

instance was supported by the opinion of Coke, whose speech ^ c^* ^ ^f 
is reported ; *No question but this a House of Record, and Record* 
hath power of judicature in some cases. Have power to judge 
of Returns and Members of our Housed' 

But if the House rests its claim on this ground, the claim 

^ I Com. Jour. 604. ' Ibid, 



158 THE HOUSE OP COMMONS. [V. 

has been abandoned with the abandonment of the right to 
determine controverted elections. It might be said that the 
Journals of the House are records, and this also was main- 
tained by Lord Coke. He rested his argument on the words 

6 Hen, of the Act of Henry VIII, which requires license or leave of 
VIII. c. 16. J » 1 

' absence given to a member ' to be entered of Record in the 

book of the Clerk of the House/ But it is doubtM whether 
the word ' record ' is there used in a technical sense. 

The Journals of the House, which are prepared by the 

clerk of the House from entries of the proceedings made by 

him daily, perused by the Speaker^ and then printed for the 

I Cowp. 1 7. use of members, are expressly declared by Lord Mansfield not 

to be matter of record. The dictum is obiter, but may fairly 

be set o£F against the statements of Coke, of which one is 

made in debate, the other in the posthumous volume of the 

Institutes. 

14 East^ It is noticeable that in the case of Burdett v. Abbott, while 

Thski the Bayley J. rests the claim of the House to commit on its parity 

right is of position with Courts of Judicature, Lord Ellenborou^h 

needed to ^ ^ 

maintain C. J. rcsts his dedsion on the broader ground of expediency, 
*^^ ^' and the necessity of such a power for l^e maintenance of the 
dignity of the House. ' If there were no precedents upon the 
subject, no legislative recognition, no practice or opinions in 
the Courts of Law recognizing such an authority, it would 
still be essentially necessary to the Houses of Parliament to 
have it ; indeed^ they would sink into utter contempt and 
inefficiency without it. Could it be expected that they should 
stand high in the estimation and reverence of the people, if, 
whenever they were insulted, they were obliged to await the 
comparatively slow proceedings of the ordinary Courts of Law 
for their redress ? That the Speaker, with his mace, should 
be under the necessity of going before a grand jury to prefer 
a bill of indictment for the insult offered to the House ? They 
certainly must have the power of self-vindication in their 
hands : and if there be any authority in the recorded pre- 
cedents of Parliament, any force in the recognition of tho^ 



Sect- rV. § 4.] PEIVILEGE8 OF THE HOUSE. 159 

Legislature, and in the decisions of the Courts of Law, they 14 East^ 
have such a power/ ^'* 

« On the whole, it would seem that the right of committal 
finds a surer basis on the necessity of such a power for the 
maintenance of the dignity of the House, than on any techni* 
cality as to the House being a Court of Record. 



§ 4. Limitation of Privilege hy Courts of Law. 

The Privileges of Parliament, like the Prerogative of the Causes of 
Crown, are rights conferred by Law, and as such their limits between 
are ascertainable and determinable, like the limits of other House and 

Courts. 

rights, by the Courts of Law. They consist, in fiict, of rights 
acquired by custom or conferred by Statute, belonging to the 
House collectively, or to its members as individuals, and 
having for their object the freedom, the security, or the dignity 
of the House of Commons. Cases have arisen in which the 
House has set up claims which the Courts have been compelled 
to consider. 

(1) The House has asserted that it is the sole judge of the Claim of 
extent of its privileges. The practical result of this assertion determine 
is that the House has declared certain acts, legal in them- j^^"^^' 
selves, to be breaches of privileges, or certain acts, unlawful in 
themselves, to be legalised by its declaration of privilege. 

To this the Courts have made reply, that when privilege 
conflicts with rights which they have it in charge to maintain, 
they will consider whether the alleged privilege is authentic, 
and whether it governs the case before them. 

From the mass of learning and arg^ument lavished upon this 
topic, it will be enough to select three cases and to state 
shortly their results as illustrating the law. 

In AM>y V. White an action was brought by an elector for 
the borough of Aylesbury against a returning officer who had 
refused to allow him to give a vote to which he was legally 
entitled. 



160 THE HOUSE OP COMMONS. [V. 

The right to vote was not in question, only the right to sue 
for the refhsal to allow the voter the exercise of his legal 
right. « 

Ashbye. '^^ Commons resolved that * neither the qualification of 
^^^**- any elector, nor the right of any person elected, is cognizable 
or determinable elsewhere than before the Commons of 
England in Parliament assembled' ; and they further resolved 
that Ashby was guilty of a breach of privilege in bringing 
his action in a Common Law Court. 

The confusion of ideas which brought about this resolution 
was curious. The House of Commons had, beyond doubt, the 
right to determine the validity of an election ; and, incidentally, 
the qualification of the voters by whom the election was made. 
The Court of Queen's Bench had, equally beyond doubt, the 
right to try an action for withholding a Common Law right, 
such as the franchise, from a man entitled to it. 

The Court could not determine, and did not profess to 
determine, any matter which would affect the validity of an 
election. It had to inquire into the right of the plaintiff to 
give a vote, but it would only enter into this inquiry in order 
to ascertain if the plaintiff had a cause of action. 

The House of Commons could have given the plaintiff no 
remedy ; he could only have obtained its decision on his right 
to vote, by calling in question the validity of the election. 
As the candidate for whom he would have voted was elected, 
he had no inducement to do this ; and, if he had done so, 
the only redress which he might have thereby obtained would 
have been the committal of the returning officer for con- 
tempt. ' Was ever such a petition heard of in Parliament^' 
said Holt, C. J. * as that a man was hindered of his vote, and 
praying them to give him a remedy ? The Parliament would 
I Sm. L. C. undoubtedly say. Take your remedy at law. It is not like a 
^^'' case of determining an election between the candidates.' 

The Queen's Bench decided against the right of action ; on 
writ of error this judgment was reversed in the House of 
Lords ; there ensued a long altercation between the .Housefi, 



Sect. IT. §4.] FBIYILBOES OF THE HOUSE. 161 

into tbe details of which it is unnecessaiy to enter, and the 
matter was ended by a prorogation. 

In Stockdale v. Hansard the House ordered the publication Stookdale 
of matter de&matoiy of the plaintiff; the defendant set up ^' 
two defences, that the statements complained of were true, 
and that, if they were not, the order of the House privileged 
the publication. 

Lord Denman, in trying the case, told the jury that he was Lord Den- 
'not aware of the existence in this country of any body what<> ruling. 
ever that can privilege any servant of theirs to publish libels 
of any individuaL' The jury found for the defendants that 
the statements alleged to be defamatory were true* But the 
Commons took offence at the manner in which Lord Denman 
had dealt with the question of privilege, and passed reso- 
lutions, the effect of which has thus been summarised by an 
aninent authority^. 

'(i) That the order of the House of Commons affords aResolu- 
justification for the sale of any papers whatever which they House. 
may think fit to circulate. 

' (2) That no Court of Justice has jurisdiction to discuss or 
decide any question of Farliamentaiy privilege which arises 
before it^ directly or incidentally. 

' (3) That the vote of the House of Commons declaring its 
privil^^ is binding upon all Courts of Justice in which the 
question may arise.' 

Other actions were brought by Stockdale against the Jodgment 
Messrs. Hansard, and the House resolved that its printers ;;^;^''^^~ 
should plead to the action, but in such a way as to rest their 
defence on the ground of privilege only. On demurrer to this 
]rilea, the Court of Queen's Bench supported Lord Denman's 
statement of the law. 

Tlie points for determination were clearly set forth in the 
judgment of Patterson J. 

^ Mi& Pcmberton, afterwazds Lord Kingidown, m his 'Letter to Lord 
T^ngdale on the recent proceedingi in the House of Commons on the subject 
of Pririlflge/p. 17. 



162 THE HOUSE OP COMMONS. [v. 

Jadgmeni * First : Whether an action at law will lie in any case for 
BOB J. ^^y ^^ whatever admitted to have been done by the order and 
authority of the House of Commons. 

* Secondly : Whether a resolution of the House of Commons 
declaring that it had power to do the act complained of, pre- 
cludes this Court from inquiring into the legality of that act. 

'Thirdly: If such resolution does not preclude the Court 
from inquiring, then whether the act complained of be legal 
or not.' 
Order of On the first i>oint the learned judge had no difficulty in 
defence to holding that, though no action could lie against a member of 
illegal act. ^^^ House for things done in the House, yet that if the thing 
done was an illegal order, the privileges of the House would 
not shelter those who carried that illegal order into effect 
outside the House. Nor had he any hesitation in holding 
that, if the second question were answered in the negative, 
the act complained of was illegal. 
Beeoliition The bulk of his argument was addressed to the question 
no bar to whether the resolution of the House was a bar to inquiry by 
j^^y ^y a Court of Law into the legality of the acts which it had 
ordered : in other words. Could the House prohibit by reso- 
lution the Courts of Law from discussing the legality of any 
act which it might choose to command ? 

* Upon the whole, the true doctrine appears to me to be 
this: that every Court in which an action is brought upon 
a subject matter generally and primd, facie within its juris- 
diction, and in which, by the course of the proceedings in 
that action^ the powers and privileges and jurisdiction of 
another Court come into question, must of necessity determine 
as to the extent of those powers, privileges, and jurisdiction : 
that the decisions of that Court, whose powers, privil^^es, and 
jurisdiction are so brought into question, as to their extent, 
are authorities ; and, if I may so say, evidences in law upon the 
subject, but not conclusive. In the present case, therefore, 
both upon principle and authority, I conceive that this Court 
is not precluded by the resolution of the House of Commons 



Sect. IV. § 4.] PBIVILEGES OP THE HOUSE. 163 

of May, 1837, from inquiring into the legality of the act 
complained of, although we are bound to treat that resolution 
with all possible respect, and not by any means to come to a 
decision contrary to that resolution, unless we find ourselves 
compelled to do so by the law of the land, gathered from the 
principles of the common law, so far as they are applicable to 
the case, and from the authority of decided cases, and the g^^^j^^^jg 
judgments of our predecessors, if any be found, which bear ©.Hansard. 
upon the question.' 205. 

And, after dwelling on the importance of maintaining all 
such privileges as are necessary for the protection of the House 
of Commons, he thus concludes his judgment. ' But power^ 
and especially the power of invading the rights of others, is a 
very different thing ; it is to be regarded not with tenderness^ 
but with jealousy ; and unless the legality of it be most clearly 
established, those who act under it must be answerable for the 
consequences. The onus of showing the existence and legality 
of the power now claimed, lies upon the defendants : it appears 
to me, after a full and anxious consideration of the authorities 
adduced by the Attorney-General in his learned argument, 
and after much reflection on the subject, that they have 
entirely fiEuled to do so.' 

Without accepting as finally satisfactory the distinction True 
between * power ' and * privilege ' drawn by the learned judge, privilege. 
it is not difiicult to see and to accept his view of the nature 
of privilege. He regards it as a defensive and not an ag- 
gressive weapon lodged with the House, and holds that to 
justify its use for the purpose of legalising a libel, more ample 
authority was required than the Attorney-General was able 
to produce. 

The character of the difficulties which arose between the Gronnde of 
House and the Courts is identical in each of these cases. In 
Aihhy Y. WhiUy the Commons thought that if the Court of 
Queen's Bench tried an action brought by an elector against 
a returning officer for refiising to allow him to vote, their 
light to determine disputed returns was being infringed. 

H % 



164 THE HOUSE OP COMMONS. [V. 

In Staekdale v. Hansard^ they thought that if the same 
Court tried an action for libellouB matter contained in a 
report made to them parsoant to a Statute, and published by 
their order, their right to the regulation of their own pro- 
ceedings was being infringed. 

In each case, when the House became aware that the appli- 
cation of its privilege to the matter in hand conflicted with 
rules of law, it seems in an impulse of annoyance to have 
asserted a right to define its own privileges in such terms as 
to override rules of law. 

In AMy v. White^ the House found itself in conflict with 
the jurisdiction in error of the House of Lords, and a proro- 
gation alone could avert the collision of the two Houses. In 
Stockdale v. Hansard, the House found it prudent to concur 
in the passing of an Act, by which publications ordered by 
Parliament were protected from the law relating to de- 
fiunation. 

It remains to consider a case in which there was no such 
conflict of jurisdictions as in the two to which I have just 
referred. 
T 3 Q. B. D. In the recent case of BradlangA v. GasseU, the validity of 
a resolution of the House of Commons, relating to matters 
confined within the walls of the House, was called in question 
by the plaintiff, and the issue raised was, on this occasion, 
free from all circumstances of irritation. It was stated with 
the utmost clearness by Stephen J. : * Suppose that the House 
of Commons forbids one of its members to do that which an 
Act of Parliament requires him to do, and in order to enforce 
its prohibition, directs its executive ofiicer to exclude him 
from the House by force, if necessary — is such an order one 
which we can declare to be void, and restrain the executive 
officer of the House from carrying out ? ' 

The distinction between the cases in which Courts of 

Law consider that the House is alone interested in the 

. ^^ matter in hand and those in which rights external to 

p. 154- the House are involved, is very clearly ftimiBhed by the cir- 



rrm^Hm^ 



S€ct.iy. §4.] PBIVILEGE8 OF THE HOUSE. 165 

cumstances of the case ; and in the judgment of Stephen J. Helation of 
*A resolution of the House, permitting Mr. Bradlaugh top^^i^, 
take his seat on making a statutory declaration, would cer- 
tainly never have been interfered with by this Court. If we 
had been moved to declare it void and to restrain Mr. Brad- 
laugh from taking his seat until he had taken the oath, we 
should undoubtedly have refused to do so. On the other 
hand, if the House had resolved ever so decidedly that Mr. 
Bradlaugh was entitled to make the statutory declaration 
instead of taking the oath, and had attempted by resolution or 
othenxn^e to protect him against an action for penaUiee^ it would 
have been our duty to disregard such a resolution, and if an 
action for penalties were brought, to hear and determine it 
according to our own interpretation of the Statute . • . We 
should have said that, for the purpose of determining a right 
to be exercised within the House itself, and in particular the 
light of sitting and voting, the House, and the House only, 
eonld interpret the Statute ; but that as regarded rights to be 
exercised out of and indejoendently of the Mouse, such as the right 
of suing for a penalty for having sat and voted, the Statute must 
be interpreted by this Court independently of the House,* 

On the whole, it seems now to be clearly settled that the 
Courts will not be deterred from upholding private rights by 
the fact that questions of Parliamentary privilege are involved 
in their maintenance ; and that, except as regards the internal 
regulation of its proceedings by the House, Courts of Law 
will not hesitate to inquire into alleged privilege, as they 
would into local custom, and determine its extent and 
application. ^ 

(2) But there is another point on which Courts of Law Need ^ 

have oome into contact with the House of Commons. It^^^t-^ 
relatee to the right of committal for contempt. The question ^^^ ^P~ 
is shortly this : whether, if a person, so committed, obtains a 
writ of habeas corpus, it is a sulSSicient return to the writ that 
the committal was by a warrant, issued in pursuance of an 



16G THE HOUSE OF COMMONS. [v. 

order of the House of Commons, when the warrant for com- 
2 Lord mittal did not specify any other grounds than contempt. In 
1 105. ' Pafy's case, in 1705, the Court of Queen's Bench held that 
it was sufficient return to a writ of habeas corpus^ that the 
on ft re- prisoner was committed for contempt, although the contempt 
^hahw9 alleged was that Paty, one of those aggrieved by the conduct 
corpu*. ^f ^]jg returning officers for Aylesbury, had brought an action 
against them, as in Ashby^s case the Court had already held 
that he was entitled to do. Holt C.J. dissented from this 
judgment, and though he was in a minority, I shall state 
hereafter some reasons for thinking that his view was the 
correct one. 
aWil8.399. In Murray* s case (1751), the return to the writ alleged 
contempt simply, and the King's Bench held that ' it need 
not appear what the contempt was, for if it did appear we 
could not judge thereof.' Like law is laid down by Lord 
14 East, I. EUenborough in the case of Burdett v. Abbott^ and in the case 
iiAd.&E. of the Sheriff of Middlesex; and the matter is put most 
clearly in the question laid before the judges by Lord Eldon, 
5D0W.199. when Burdett v. Abbott came before the House of Lords for 
decision. He asked them whether, if the Court of Common 
Pleas had committed for contempt, stating no other cause on 
the warrant, or the circumstances of the contempt, and the 
matter came before the Court of King's Bench on the return 
to a writ of AabeM corpus^ the latter Court ' would discharge 
the prisoner, because the particular facts and circumstances 
out of which the contempt arose, were not set forth in the 
warrant.' The judges unanimously answered that it would 
not do so, and the House of Lords thereupon decided for 
the plaintiff. 

The case o( Burdett v. Abbott did not arise, like the preyious 
cases, upon a return to a writ of habeas corpun^ but in an action 
of trespass brought against the Speaker for causing the 
plaintiff's house to be broken and entered, and himself to be 
carried to the Tower and kept there. But it is dear that, 
whether or no the House of Commons is a court of recordi 



Sect. IV. § 4.] PBIVILEGBS OF THE HOUSE. 167 

it has not only the same power of protecting itself from insult Cause of 
by commitment for contempt, but that the Superior Courts of ment need 
Law have dealt with it in this matter as they would with one ^°* *PP®»»'» 
another, and have accepted as conclusiYe its statement that 
a contempt has been committed, without asking what that 
contempt may have been. 

Nevertheless, if the alleged contempt be expressed in the bat if it 
warrant, it is possible that a Court of Law might consider coorts wiU 
the commitment on its merits. Thus, Lord EUenborough, in <»no<i«»^ 

' ^ ' adequacy. 

Burdett v. Abbott^ states the law : ' If a commitment appeared 
to be for a contempt of the House of Commons generally, I 
would neither in the case of that Court, nor of any other of 
the Superior Courts, inquire further ; but if it did not profess 
to commit for contempt, but for some matter app^ring on 
the return, which could by no reasonable intendment be con- 
sidered as a contempt of the Court committing, but a ground of. 
commitment palpably arbitrary, unjust, and contrary to every 
principle of natural justice ; I say that in case of such a com- 
mitment ... we must look at it and act upon it as justice may 
require, yr(w» whatever Court it may prof eu to have proceeded* 

And thus it is possible that the opinion of Holt C.J. in 
Paty's case, may have been the better one, and that if a con- 
tempt were alleged to consist in the exercise of a legal right, 
a Court of Law might ' act upon it as justice may require.' 



CHAPTEK VL 



THE HOUSE OP LOEDS. 

We have so far dealt with that part of the legislature which 
is brought into existence by popular election taking place in 
pursuance of a writ of summons from the Crown. We now 
come to deal with that part which depends for its existence 
on royal writs addressed to its individual members. 
Peerage But wc are apt to speak of the Lords of Parliament or of 

not identi- 
cal with the House of Lords as though these were convertible terms 

Partial with the Peerage, forgetting that the political functions and 

ment. privileges of a peer who is also a Lord of Parliament are not 

summed up in his right to a place in an hereditaiy legislative 

body, and that the Peerage is not conterminous with the 

House of Lords. 

Lords of That the Peerage and the House of Lords do not mean the 

ment who same thing is easily shown. For it would seem to be of the 

^^^ essence of the Peerage that it should carry with it hereditary 

right; such hereditary right is wanting not only to the 

Bishops but also to the Lords of Appeal, yet Bishops and Lords 

of Appeal are entitled to be summoned to the House of Lords. 

■^^"J^^^ Again, the peerage before the Union with Scotland was 

are not 

LordBof the peerage of the realm of England: after the Union it 
ment became the peerage of the kingdom of Great Britain, but as 
many of the peers of Great Britain as were such in virtue 
of being peers of Scotland did not become Lords of Parlia- 
ment unless they were in the number of the sixteen repre- 
sentative peers. After the Union with Ireland the peerage 



THE HOUSE OF LOBDS. 169 

became that of the United Kingdom of Great Britain and 
Ireland, but again each as belonged to this body as peers 
of Ireland did not become Lords of Parliament unless they 
were in the number of the twenty-eight representative peers ^. 

It follows therefore that there are Lords of Parliament who 
are not Peers, and Peers who are not Lords of Parliament. 
There are certain functions and attributes common to Peers 
who are Lords of Parliament and to Peers who are not. These 
may be distinguished in the Lords' report on the dignity of 
the peerage, where peers are described : — ' First as possessing FnnctionB 
individually titles of honour giving them respectively rank ®«^®' 
and precedence; secondly, as being individually hereditary 
counsellors of the crown; thirdly, as being collectively (to- 
gether wiih the Spiritual Lords), when not assembled in 
Parliament, the permanent council of the crown ; fourthly, as 
being also collectively (together with the Spiritual Lords), wAen 
auembled in Parliament^ a Court of Judicature ; and fifthly, as 
having for a long time formed with the Commons, when 
convened in Parliameniy the Legislative Assembly of the 
kingdom by whose advice, consent and authority, with the 
sanction of the Crown, all laws have been made ^.' 

It might be proper to limit our consideration of the peerage Reason 
to its functions as a branch of the leg^islature, reserving an with non- 
acoonnt of its other functions for other parts of the subject to ^^^c-" 
which they might seem more appropriate. The right of the ^^^^ 
peers to rank and precedence would come to be dealt with 
under the head of the Prerogative of the Crown as the 
^ fountain of honour,' their rights as counciUors of the Crown 
might find a place under the head of the Boyal Councils, 
and their judicial powers must unquestionably be considered 
in detail when hereafter it is necessary to describe the con- 
fititntion of the Courts of Justice. 

It is, however, as members of a legislature, either actual, as 
in the case of the Lords spiritual and the Lords temporal of 

> Lordi* Third Bepart cm Dignity of the Peerage^ p. 34. 
* Larcb' Fint Beport on Dignity of tho Peerage, p. 14. 



170 



THE HOdSB OF LORDS. 



[VI. 



Qualifica- 
tions for 
HouBe of 
Lords. 



the United kingdom, or potential, ae in the case of the Scotch 
and Irish peers, who may be chosen as representatives of their 
respective branches of the peerage, that a peer enjoys these 
privileges other than rank or precedence. The Crown may 
confer a mere dignity by making a man a peer for life, bat 
snch an honour has been held to be wanting in those attributes 
which give most value to a peerage, inasmuch as it does not 
carry with it the right to sit and vote as a Lord of Parlia- 
ment, except in the case of the Lords of Appeal, who are by 
Statute exempt from the disabilities of a life peerage. So it 
may be convenient in treating of the House of Lords to 
consider the privileges and duties of peers generally as well 
as the constitution and privileges of the House of Lords. 

First then let us ask, of what persons does the House of Lords 
consist ? can we classify the Lords of Parliament ? There are 
five kinds of qualification for membership of the House of Lords, 
and the ^ Lords Spiritual and Temporal' consist of — 

(i) Hereditary peers of the United Kingdom : 

(2) Hereditary peers who are not hereditary Lords of 

Parliament — 

(a) The 16 representative peers of Scotland elected 

for each Parliament, 

(b) The 28 representative peers of Ireland elected 

for life : 

(3) Life peers who are Lords of Parliament conditionally 

on the discharge of certain functions— 
(a) The 26 spiritual peers, 
(6) The two lords of appeaL 



Origin of 
baronage. 



§ I. TAe Baronage as an estate of tke realm. 

Such is the present constitution of the House of Lords. 
But it is necessary to ask not only how these different kinds 
of qualification arose, but how the entire body of the House 
comes to exist as an independent branch of the legislature 
representing an estate of the realm. 

The Witan of the Saxon kings comprised, at toy rate, the 



§ I.] THE BAEONAGB AS AN ESTATE. 171 

earls and bishops. The temporal office of the one, the spiritual 
office of the other, conferred a right to be present at the great 
council of the realm. Afber the Norman Conquest the earl 
lost, to a great extent, his official position. Nor did the bishop Feudal- 
any longer hold his lands &ee of all but spiritual service. In of great 
the words of Dr. Stubbs, * the earldoms became fiefs instead of ^°^^^* • 
magistracies, and even the bishops had to accept the status 
of barons^.' Attendance at the king's court became a liability 
rather than a right, a liability arising out of tenured We can 
consider later whether the bishop is summoned in right of his 
spiritual office or on the liability of his temporal barony. The 
earls created after the Conquest were few : nor was it the The 
policy of the Norman and Angevin kings to retain the great baronage. 
territorial offices of the Anglo-Saxon kingdom. Sut when the 
baronage appears in the reign of Edward, as an estate of the 
realm summoned in a special form to a deliberative assembly 
distinct from the Commons, it consisted of many persons 
besides earls and bishops, and we are met by the difficulty of 
ascertaining how this body was constituted and what were 
its distinctive characteristics. When John promised that he 
would never exact any aid other than the three feudal aids 
unless with the assent of the common council of the realm, that 
council was described as consisting of persons whose right to be 
present was wholly dependent upon their position as tenants in 
chief of the Crown. The assembly was divided into two groups, 
and of one group each member received a special summons. 
Some members of this group are easily distinguishable from all 
the members of the other : the archbishops, bishops, abbots and 
earls. Besides these come the ' majores barones,' and where The 
all alike depended for their right to be present on holding barones of 
lands of the Crown, it is not easy to say what constituted ^* ^**"' 
the difference between the majores barones specially summoned 
snd the minores barones and other tenants in chief summoned 
in * generali.' It may have been greater extent of possessions, 
or greater political influence, or a longer line of descent. 

* Const. Hist. i. 364. * Ibid. I 270. 



172 



THE HOUSE OF LOBDS. 



[VI. 



So far as the assembly of John is conoemed its only import- 
ance to us lies in the conclusion to which it leads ns» that, 
since the right to be present depended in all cases npon 
tenure, the distinction between the majaret barones and the 
minores barones could not have rested on the £act that the 
former held of the Crown. 
The baron- This conclusion is important when I come to ask what 

BBG of 

Edward I gave a right of summons to the assembly of the baronage in 
the constitution of Edward I. The right of representation in 
the House of Commons of 1295 most certainly did not depend 
upon the holding lands of the Crown. Did then the right of 
summons to the House of Lords depend upon such holding ? 
Or I may put the question in this way : Apart from the earls 
and bishops, was the estate of the baronage limited to such 
persons as held of the crown on baronial tenure, and did such 
tenure confer a right to be summoned ? There are in fact 
three possibilities as to the relation of the estate of the 
baronage to tenure. The king might have been bound to 
summon all who held of him * per baroniam,' and none other : 
he might have been free to select for summons whom he chose 
within the limits of those who held on such a tenure ; or his 
discretion as to the summons might have been unlimited. 

Amid the historical difficulties of the question it seems to 
be made out clearly that the particular holding which carried 
with it the feudal obligations of a barony, the holding of 
thirteen knights fees and a third, did not place the holder 
among majores barones : and the Committee of the House of 
Lords appointed to inquire into the Dignity of a Peer came 
to the conclusion that Edward I summoned to Parliament by 
special writ some persons who had not baronies in this sense, 
and that many who were in possession of such baronies were 
not summoned ^. 

The practical outcome of a difficult and obscure portion of 
our Constitutional^Histoiy seems to be that, at any rate from the 
time of Edward I, the king used his discretion in respect of the 

^ Third Beport on the Dignity of the Peerage, p. 26. 



did not 
rest on 
tenure, 



but on 
BummouB 



j 



§ I.] THE BABONAGE AS AN ESTATE. 173 

special sommons by writ: that as a matter of ffu^ those 
summoned were nsoally, though not invariably, tenants of the 
crown and tenants of baronies : but that persons were sum- 
moned who not only were not tenants of baronies but were 
not tenants of the crown at all^. The estate of the baronage 
was constituted and defined by the exercise of the royal prero- 
gative in issuing the writ of summons. 

In one respect the discretion of the crown was subject to an and smn- 

important limitation. A writ of summons conferred a right to ferred 

be summoned upon the heirs of the first recipient of the writ, ^^t *"^ 

if only he had obeyed it and taken his seat. The date from 

which a writ of summons operates in this way so as to create 

an hereditary peerage has been variously stated. Lord 

Bedesdale in the L'Isle ease seems to fix it at the fifth year 

of the reign of Richard II. Mr. Hallam would place it later ^. 

Sishop Stubbs tells us that it is convenient to adopt the year 

1295 as the era from which the baron whose ancestor has 

once been summoned and has once sat in Parliament can claim 

an hereditary right to be so summoned^. Professor Freeman 

thinks that Dr. Stubbs fibces the date a little too rigidly, and 

Bays, ^ One may certainly doubt whether Edward I, when he 

summoned a baron to parliament meant positively to pledge 

himself to summon that baron's heirs for ever and ever, or 

even necessarily to summon the baron himself to every future 

parliament. The facts are the other way : the summons for 

a while still remains irregular. But the perpetual summons, 

the hereditary summons, gradually became the rule, and that 

role may in a certain sense be said to date from 1295. That 

10, from that time the tendency is to the perpetual summons, 

to the hereditary summons; from that time anything else 

gradually becomes exceptional ; things had reached a point 

irhen the lawyers were sure before long to lay down the rule 

that a single summons implied a perpetual and an hereditary 

summons ^.' 

> HaUam, Middle Ages, iii 128. * Ibid. iii. 135. 

* CqomL Hift. iL * Encyoiopaedi* Brittimica, lit. Peerage. 



474 THE HOUSE OF liOEDS. \\L 

^ 2. Zeffal difficulties in defining the estate cf the baronage, 

Diffieultiet The Parliamentary baron acquired his rank and his right to 
ofore^oir ^^^ ^7 ^i^re writ of Bummons followed by the taking of his 
seat; the earl was created by formal investiture with the 
sword, frequently in Parliament, and he received a charter, or 
later a patent, declaring the dignity conferred upon him and 
limiting its devolution. As the other ranks of the peerage 
were called into existence the grant was in like manner 
evidenced by charter or patent, and Richard II conferred a 
barony in this manner. The practice was not repeated in the 
case of baronies until the reign of Henry VI, but after this 
it became the usual mode of creating Parliamentary baronies 
as well as other ranks in the peerage, and tended greatly to 
simplify questions which from time to time arose as to the 
rights to disputed peerages. 

For the patent was evidence of title and indicated the 
line in which the peerage was to descend, usually to the 
from con- heirs male of the grantee of the patent ; while the titles of 
^Za. baronies which depended npon the writ of sommons were 
complicated, not merely by the greater difficulty of proof, 
and by the fact that they passed to heirs lineal, and were 
not limited to the male line, but undoubtedly by the fact 
that for a long time an impression prevailed that they were 
connected with the holding of land, and hence that they 
might be dealt with like so much landed property \ 

From this connection, right or wrong, of barony with tenure 
some curious results arose. 

Prynne tells us^, but without giving authority for the state- 
ment, that baronies by tenure were alienated by sales and 
gifts * whereby the former barons, only by tenure, were no 
more summoned after such alienations, but the new tenants 

^ We may note the effect, in oonfirming the idea that baroniee were bj 
tenure, of the position of the mitred abbots who asked to be excused attend^ 
anoe on the ground that they did not hold baronies in the sense of land 
baronies. Stubbs, Const. Hist. iii. 443. 

' Brief Easter, p. 239. 



ure. 



§ a.] DIPFICXTLTIBS OP DEFINITION. 176 

who purchased or possessed them.' It may not be easy to find 
proof of Prynne's general assertion, but at any rate there seems Alienation 
no doubt that holders of baronies exercised a power of limita- 
tion so as to exclude heirs general in favour of a particular line 
of descent. Thus William Baron Berkeley in the reign of 
Henry YII, having barred the entail of the castle, lands and 
other hereditaments, including as was considered at the time, 
the Parliamentary barony, settled the same on Eling Henry VII, 
in tail male with remainder to his own right heirs; the 
Parliamentary barony thereupon remained in abeyance until 
the death of Edward VI, when the heirs male of Henry VII 
failed and the remainder took effect in favour of the great- 
grandson of William's brother, who was then summoned to 
Parliament in right of the barony. 

Again, until the reign of Henry VIII a commoner marrying Tenancy 
the heiress of a baronage became entitled to a writ of summons c^by. 
during her life. Henry VIII thought it objectionable that 
' a dignity should shift from the husband on the death of the 
wife,' but until the decision in the Wilhtighby peerage case it CoUins, 
was still held that a tenancy by the curtesy in a peerage might ^* "* 
exist during the minority of the heir. 

Again it seems to have been thought that a barony, like Surrender 
land, could be surrendered to the crown, if not by simple deed, 
or act of surrender, at any rate by the process of levying a fine. 
It is impossible that this c<mception of a Parliamentary barony 
as a thing which passed and could be dealt with like land, 
should not have grown out of a close connection between 
tenure and the right or liability to be summoned to attend 
the great councils of the kingdom. And the practices above 
mentioned have ceased to be any longer lawful, not in conse- 
quence of any statute, or of any formulation of rules relating 
to the peerage by the House of Lords, but as a result of the 
gradual establishment of custom by a series of resolutions or 
decisions of the House of Lords on disputed peerages : for as 
Xiord Campbell has said, ' It is now fully settled that the law 
of the peerage of England depends entirely upon usage, both 



176 



THE EOTJSE OF LORDS. 



[vr. 



•8 M. Xi. G» 
79. 

Effect of 
17U1 oen- 
tory ded- 
sioDB. 



CollinB, 
306. 



Collins. 
356. 



Collins, 



iQth cen- 
ttiiy ded- 
sions. 

Life Peer- 



as to the power of the Ciown and as to any claim that may be 
made by a sabject.' 

The seyenteenth centoiy, and especially the latter part of the 
seventeenth centoiy, may be looked apon as the period when 
the customs of the Peerage were defined and reduced to the 
form in which they appear in modem text-books. And this 
was done by resolutions of the House passed independently of 
reference from the Crown, or decisions of the House upon cases 
submitted for its consideration by the Crown. 

Thus in 1640 the House resolved in the Purbeci case that 
a peerage could not be alienated or surrendered to the Crown, 
and in 1678 that a peer could not divest himself of his barony 
by the process of suffering a fine ^. 

In 1670 it was held in the Rutkyn case that title to a peerage 
must originate in matter of record ; that is, by writ or by a 
succession of writs or by patent. Such a decision would mean 
that the House would not accept the hct of the seat having 
been taken, or a ceremonial having been passed through unless 
supported by documentary evidence of a certain sort. 

In 1673 ^^ ^^^ ^^^ ^ ^^ Clifton ca^e that a man to whom 
a writ of summons is issued, and who in pursuance thereof takes 
his seat in Parliament acquires thereby an hereditaiy peerage. 

In 1677 comes the important decision in the case of the 
barony of FrescAville that a Parliamentaiy barony is not 
constituted by the mere receipt of a writ of summons nor 
is the blood of the holder ennobled thereby '• Proof must 
be given that the summons was obeyed and the seat taken 
in order to perfect the title to the barony. 

Two questions remained to be settled on the subject of the law 
of the peerage, and these were settled in very recent times. 
The power of the Crown to create peers for life with a right 
not merely to possess rank, precedence, and the other attributes 
of peerage, but to sit and vote as Lords of Parliament, was 
called in question in the year 1858 in the Wendejfdale Peerage 
case. It was then held that the Crown had no such power. 



^ Lords* Bep. lii. 43. 



• Ibid. iii. 47. 



f 3.] EBSTEICTI0N8 ON CREATION OF PEBES. 177 

The right of a subject to claim a writ of Bommons in virtue Baroniea 
of the holding of certain lands was raised and adjudicated upon ^ ^^^^' 
in 1 86 1 in the Berkeley Peerage case, when the question of the 
existence of baronies by tenure was finally set «t rest. 

So fiur I have tried to show how the baronage came to be 
an estate of the realm and a separate House of Parliament, 
and to point out the legal difficulties which have sprung 
firem the customary and indeterminate ^character of its origin. 
We now come to consider : — What are the limits on the right 
of the Crown to <3reate peers ; — what are the limits on the right 
of the Crown to summon peers ; — ^what disqualificatiens may 
prerent a peer, duly created and properly summoned, from 
sitting and voting ; — what there is individual or character- 
istie about the mode of creation or of summons in the case of 
each of the classes of peers enumerated on a preceding page ; 
— what are the privileges of the House collectively or of its 
members individually. 

§ 3. Real or supposed restrictions on Creation. 

With regard to restrictions on the Crown's right to create 
peerSy one may say that the right to confer the dignity of the 
peerage is, as to the United Kingdom, unlimited ; as to the 
Scotch and Irish peerage it is limited by the Acts of Union 
with Scotland and Ireland. There is, however, some uncer- 
tainty as to the sort of estate in a dignity which the Crown 
may legally confer. And until the question of the legal 
existence of baronies by tenure was set at rest it was not 
absolutely certain that the holder of such a supposed dignity 
might not transfer it at his pleasure and so^ to that extenti 
encroach on the royal prerogative of creating peers. 

Iiet us take first the recognised limitations imposed by the 
AetB of Union. 

The Act of Union with Scotland provides that the peerage Limit- 
of Scotland shall afi«r that Act be the peerage of O^at^^^f'^ 
Britain, and makes no provision for any increa^ of the^'^^'^* 

N 



178 THE HOUSE OP LOBDS. [vi. 

Sooieh Scotch peozBge, or for tke mamtenanoe of its nnmben at 
their then ^^YJflt.JTig figiire. It would follow that if the Queen 
made a new peer of Scotland he would not be admitted to 
vote at the election of Scotch representative peers. Indeed 
an Act of the present reign takes away the right to vote in 

IO& II respect of any peerage in virtue of which the vote has not 
" ^' ^^' been exercised since 1800. 

Iriihpeen. The Act of Union with Ireland provides that the Crown 
may make one peer of Ireland for every three that become 
extinct after the Union imtil the number ftJl to 100, and 
that the number of Irish peers not entitled by the posses- 
sion of other peerages to an hereditary seat in the House of 
Lords of the United Kingdom shall never fidl below 100. 

The Crown therefore cannot create a peer of Scotland ; and 
can only create a peer of Ireland under the circumstances 

Perndari- defined in the Act of Union with Ireland. We now come to 

bid limitA" 

tions of the doubtftd question of the right of the Crown to create 

'*®*"*^' peerages with limitations which would not be admissible 
in the case of grants other than those of dignities. 

CWoo* In the Devon peerage case it was held that a grant 
of an earldom made to a man and Ais kein male was good, 
a grant differing from an estate tail in the absence of words 
of procreation and from an estate in fee by reason of the 

L.R. iv. restriction as to sex. In the WUtes claim of peerage it was 
held that a similar grant was bad. There were other reasons 
for holding that the claimant in the Wiltes case could not 
sustain his claim, for William le Scrope the first Earl of 
Wiltes was alleged to have forfeited his earldom, upon his 
execution, in the troubles which ended in the dethronement 
of Richard II. But Lord Chelmsford seems to express a 
strong opinion that the grant was bad. He asks ' whether it 
is competent to the Crown to give to a dignity a descendible 
quality unknown to the law, and thereby to introduce a new 
species of inheritance and succession ? ' and adds, ' the question 
put in this way seems to answer itself. The Crown can have 
no such power unless there is something so peculiar in a dignity , 



§3.] EESTEICTI0N8 ON OEBATION OF PBEES. 179 

80 entirely within the province of the Crown to motdd at 
its pleasure, that a limitation void as to every other subject 
of grant is good and valid in the creation of a peerage. No 
one has pushed the argument to this extravagant length, and 
yet, if any one limitation which the law prohibits in a grant 
of property may be applied by the Crown to the grant of a 
dignity, it is difficult to see how yon can stop short of 
holding that there is no restriction upon the Crown's esta- 
blishing any order of succession to a dignity, however novel 
and extraordinary/ 
It must be admitted that the rule as to the possible limita- na<^ ^ ^ 

the lame 

tions and the descent of dignities is by no means clear. Lord as of 
Chelmsford denies the right of the Crown to create by patent ^' 
any limitation of a dignity which would not be permissible in 
the case of real estate. And this must be taken with the i Inst^ i6, 
further restriction mentioned by Coke, that a man or woman 
might be ennobled for life but not for years, because then such 
a dignity might pass to executors or administrators ; it would 
in &ct be personalty. 

But it is difficult to see why the Crown should be restricted Bat m 
in creations by patent if the creation by writ is found to by writ, 
confer an estate unknown to the law in the case of realty. 
And that such an estate is conferred by writ seems clear 
from the words of Coke, who says that a writ of summons 
confers on the person summoned ' a fee simple in the barony 
without words of inheritance.' Such an estate would be to 
the grantee and his heirs general subject to the condition of 
taking his seat : but he qualifies this statement almost 
immediately by saying that * thereby his blood is ennobled 
to him and his heirs lineal.' Cruise commenting on these the limit- 
dicta of Coke says, ' a person having a dignity by writ is not anomaloiu. 
tenant in fee simple of it, for in that case it would descend to 
Jkeirs general^ whether lineal or collateral, of the person last 
seised ; whereas a dignity of this description is only inherit- 
able by such heirs as are lineally descended from the person 
first summoned to Parliament and not to any other heirs. 

N % 



180 THE HOUSE Oi" LORDS. [vh 

It is in &ct a species of estate not known to the law in oay 
other instance except that of an office of honour^.' 
•itoteki*^ • ^^ would seem then that a dignity confened by writ of 
dignity by snmmons and not expressly limited by an accompanying 
patent is like a donatio eondUionalis such as the Statute of 
Westminster II was intended to perpetuate, or that it is an 
estate tail created without words of limitation and incapable 
of being barred. If, as seems tolerably clear^ the Crown could 
at the present day create a barony by writ^, it can create such 
an estate in a dignity as the law would not recognize in the 
case of land and can thereby * give to a dignity a descendible 
quality unknown to the law.' With submission it may be 
questioned whether Lord Chelmsford's reasoning in this part 
of his judgment in the Wiltes' peerage case is well founded. 

B»oni« It remains to consider the vexed question of baronies by 

by tenure; * ^ "^ 

tenure, which, if they could be held to exist, would encroach 
upon the exclusive prerogative of the Crown to summon whom 
it will to its Councils and to the Lords House of Parliament. 
But the question has been decided adversely to the validity 
of such baronies in the Berkeley peerage case. 

The Berkeley peerage case came to be decided in t85i, 
upon a reference by the Crown to the House of Lords of a 
petition of Sir Maurice Berkeley to the Queen to be declared 
Baron of Berkeley and to receive a writ of summons to 
Parliament, 
groandi of The ground of the petition was that Sir Maurice was for 
the time being entitled to the castle and lands constituting 
what had been the territorial barony of Berkeley ; and it may 
be said shortly, that in order to prove his case the petitioner 
had to show, first, that the right to a writ of summons had 
shifted with the right to the castle and lands of Berkeley, 

' Cruife, on Dignities, p. lOo. 

* Huuftrd, ToL 140, p. 331. Lord Gunpbell nys 'the writ withont the 
patent ia conolusiTe efidence of an intentioii to create a baxon j in fee which 
is dearly within the prerogatiye of the crown.' It is presumed that the ' fee * 
must be understood with the limitationB dted from Coke on the preTious ps^pe. 



^^^ 



$3.] EESTEICTIONS ON CEBATION OF PEEBS. 181 

and secondly that it had shifbed in sneh a way as to make a 
precedent for the disposition by will of a barony by tenure. 

As to the iBrst point the petitioner was able to make out a 
case. There were two settlements of the castle and territorial 
barony of Berkeley by which it might be alleged that the 
Parliamentary barony had been allowed to pass to the person 
for the time entitled under the settlement. 

Of these settlements the first took place in the reign of Fint 
Edward III, when Thomas, Lord Berkeley, with licence from of barony. 
the Crown, settled the castle and lands constituting the terri- 
torial barony upon himself for life with remainder to his son 
Maurice in tail nude. The result of this settlement was tiiat 
when, in the third generation, male heirs &iled in the direct 
line of descent, not only the lands but the writ of summons 
to Parliament went out of the direct line to the nearest male 
heir. There seemed no doubt that this was a genuine exercise 
of a right to direct the devolution of a barony by tenure, and 
that the baron summoned as just described was recognized 
by the House of Lords as entitled to the same precedence as 
though he had been in the direct line of descent. 

The second settlement was more doubtful in its application Second 

to the matter in dispute. "William Lord Berkeley, in the 

reign of Henry VII, having barred the entail above described 

by suffering a fine, settled the territorial barony upon the 

heirs of his body, with remainder to Henry VII, and the heirs 

of his body, with a reversion to his own right heirs. William 

died childless, and his lands passed under the settlement to 

Henry VII, and his brother Maurice was never summoned to 

Parliament. When Edward VI died childless the reversion 

fell in, and Maurice's great-grandson acquired the property 

and was summoned to Parliament, taking the precedence due 

to the ancient barony. But in the meantime, though Maurice 

Berkeley was never summoned to Parliament, his son Maurice 

was summoned, yet only as junior baron, and he never obtained 

the high precedence due to the old Berkeley barony. When 

Maurice died childless his brother Thomas was summoned, 



MP 



182 THE HOUSE OF LORDS. [VI. 

and on the death of Thomas, his son, also named Thomas, was 
smnmoned, and this last, enjoyed the precedence of the old 
barony. Shortly before his death the reversion had &llen in 
by the death of Edward VI, and Thomas's son Henry obtained 
the Berkeley lands as well as the Berkeley peerage. 

There seems some question therefore, whether, while the 

lands were in the Crown *the barony was not recognized, with 

or without the precedence due to it, as vested in the heirs at 

law of William the settlor. 

Why in- These two settlements made the strength of the claimant's 

proot^^^ case, because they afforded proof that a dealing with the castle 

of Berkeley affected the right of summons to Parliament. In 

consequence of the firsts the right of summons had followed 

the castle out of the direct line of descent. In consequence of 

the second, the writ of summons had, at any rate for a time^ 

ceased to be issued while the castle was vested in the Crown. 

They were But the inadequacy of these settlements to establish the 

and with claimant's case arose from the fact that in each case the settle- 

licenoe ; ment was made by deed and with licence from the Crown, 

whereas the claim set up rested on a devise of the castle by 

will. The claimant had therefore to contend that modes 

of dealing with land unknown to the law at the date of the 

last settlement on which his case rested were applicable to 

baronies by tenure. 

There was no proof that a usage ever existed ' by which 

a peer, of his own authority and of his own caprice, might 

disinherit his own sons, might transfer the peerage to a 

stranger, might confer a privilege on this stranger to demand 

Lord & summons from the Sovereign to sit in the great council of 

sIb^L^' the realm, and might compel the unwilling sovereign to 

^^' receive the homage of a peer so created.' 

but the -^^^ ^^® claimant, in order to establish his case, had to make 

claim ^qIj ^q existence of a ri£:ht, the exercise of which would have 

rested on a ^^ i i . 

devise. led to these inconvenient and even grotesque resolts. For hia 
claim rested on a devise, and wills of land were not valid at the 
date of the last settlement which was used to prove a right to 



^^^^K^^^^^mmammmmmas'^^ 



$ 3.] BESTBIOTIONS ON CEEATION OF PEEBS. 183 

deal witii the barony bj the holder: he therefore was obliged 
to claim that a baronj bj tenttre,. if it existed at all, was 
soseeptible of the widest exercise of rights -of alienatioii 
and disposition, rights which had oome into existence at a 
later date than any precedent which he cotdd allege. He 
therefore conld make no use of the saving danse in the Act u Car. n. 
* for abolishing tenure by Knight's Service,' by which it was ®' *^' *• ''* 
proTided that nothing in that Act should ' hart any title of 
hononr, feadal or other, by which any person hath or may 
hare right to sit in the Lords Honse of Parliament.' For it 
was impossible for him to prove that any one had ever 
acquired such a right by devise. 

The decision of the House of Lords coincided with the 
opinion given by the jadges consnlted in the FitzwaUer case, CollinB, 
' that whatever pretence there may have been for presuming 
that there were originally baronies by tenure, yet that baronies 
by tenure had been discontinued many years and were not 
then in being, and so not fit to be revived or to admit 
any pretence or right of succession thereupon, and that the 
pretence of a barony by tenure was therefore not to be 
inaisted on.' 

The Crown, then, has the exclusive prorogative of creating Summary. 
peers, and can do so at wiU, sulgect only to the restrictions 
(i) that it cannot create a peer of Scotland ; (2) that it can 
only create a peer of Lwland under circumstances defined in the 
Act of Union with Ireland ; and (3} that the point seems 
doubtful whether in directing the devolution of a dignity it is 
confined to limitations recognised by law in the case of other 
grants. 

Beyond these restrictions its powers are unlimited: but it The Peer^ 
would not be right to leave this part of the subject without 
noting a proposal made in the year 1719 to confine within 
reiy narrow limits the creation of new peers. 

The Peerage Bill of Lord Smiderland would have closed the 
House of Lords to any increase in its numbers beyond six. 



184 mm HOUSE OP LOEDS. [VT. 

The king was to be allowed to make six new peers ; after 
which, new creations were only to take place on the extinction 
of existing peerages. The Scotch peerage was to be repre- 
sented by tweniy-five hereditary peers, which number was to 
be maintained by reinforcement firom the remaining peers of 
Scotland as occasion required. The bill was rejected, and its 
provisions are matter of history. The successfdl attempt of 
Anne and her ministers in 1711 to pack the House of Lords 
by the creation of twelye new peers, and so to secure a majority 
for the Parliamentary approval of the Peace of Utrecht was 
probably the ground of this venturesome proposal. It may 
not be much more venturesome to surmise that if the ranks of 
the House of Lords had been dosed in 17 19, the House itself 
wovli hardly have been in existence in 1885. 

§ 4. Beal and supposed restrictions on Summons. 

For our purposes, which are mainly to consider the House 
of Lords, and not the Peerage generally, the limits upon the 
Crown's right of summons are more important than the limits 
upon its right to confer the Dignity of the Peerage. I will 
deal with all that exist or have been suggested with such 
comment or explanation as may appear to be necessary. 
Tenure. I. Tenure. Enough has been said on this point to show 

the character of the suggested limitations and the grounds on 
which, in the Berkeley peerage case, it was held not to exist 
If baronies by tenure existed now they must be held with all 
the modem freedom of alienation and disposition, and the 
subject might therefore by sale or gifb constrain the Crown 
to summon to its Councils and Parliament the man whom he 
might procure as his purchaser or select as his donee. 

The historical uncertainty as to the existence of such 
baronies, and the practical absurdities which would follow 
from their existence, combine to lead to the conclusion that, 
at any rate, in the language of the judges in the Fitzwalter 
case, they are ' not fit to be revived.' 



^^w>^— — wpj 1 1 ■ np^— >w^a||^ip-^ , 1 t^mTl^ 



§ 4.] BESTBIOTIONS ON StTMMONS. 185 

2. Scotch and Irish Peers, I Iiave already referred to the Sootoh and 
restrietionfi which are set upon the power of the Crown to Peen. 
create peerages of Scotland and Ireland. There are further 
restrictions upon its power to summon peers of Scotland and 
of Ireland to sit and vote in the House of Lords. 

The Act of Union with Scotland conferred upon all Scotch Bettric- 
peers the same privileges a? were enjoyed by the peers of p^Ji*^" 
Great Britain. The Act of Union with Ireland conferred ^^ ®^ 

Umon: 

upon all Irish peers the same privileges as were enjoyed by 
the peers of the United Kingdom of Great Britain and 
Ireland. But in each case was excepted ihe right to sit in 
the House of Lords otherwise than as representative peers 
under the conditions of their respective Acts of Union. 

So jealously was this exception guarded by the House of formerly 
Lords that throughout the greater part of the eighteenth tion of 
century it was maintained that the Crown could not confer ^^^ 
upon a peer of Scotland a peerage of Great Britain which 
would entitle him to a writ of summons. The House came 
to this Resolution in the year 1711, without any reference 
from the Crown, in the case of the Duke of Hamilton (of the 
Peerage of Scotland), who claimed a seat aa having been 
ereat«d Duke of Brandon in England. This resolution was 
affirmed in 1719 in the case oi the Earl of Soloway, who was 
also Doke of Dover. 

The House of Lords endeavoured thus to impose a strange 
restriction upon the Crown's right of summons, maintaining 
that a Scotch peerage, though not a disqualification for 
receiving a peerage of the United Kingdom, was a disquali- 
fication for the enjoyment of the privileges of such a peerage 
in respect of sitting and voting in the House. 

But in the year 1782 a claim was again made for a writ now re- 
ef summons in respect of the dukedom of Brandon, and the 
judges were asked by the House of Lords to say whether the 
I>iik6 of Brandon was incapable of receiving a writ because 
be was also Duke of Hamilton, or, in the terms of the reference, 
< -whether the Peers of Scotland be disabled from receiving, 



186 THE HOUSE OF LORDS. [VT. 

subsequently to the Union, a Patent of Peerage of Great 
Britain with all the Piivil^^ usnallj incident thereto.' The 
jndges delivered a unanimoas opinion in favoor of the claim, 
and there is now no doubt that though the Crown cannot 
summon a Scotch or Irish peer (apart from the representative 
peers), it can enable itself to sunmion such a peer by conferring^ 
upon him a peerage of the United Kingdom. 
Spiritaal o The Spiritual Peers. The number of the Lords Spiritual 

peers. , * , 

sitting and voting in Parliament is now twenty-six — twenty- 
four bishops and two archbishops. An increase in the number 
of English bishops has not entitled the Crown to increase the 
number of Lords Spiritual summoned to Parliament, and 
the issue of the writ of summons is regulated by Acts of 
Parliament which provides for the creation and endowment of 
new Bishoprics. 
Th ^ right In the Acts which establish the bishoprics of Manchester, 

01 Crown 

limited by St. Albans, and Truro, as well as in the Act of 1878 which 
***'^*** provides for the foundation of four new bishoprics, th^re is 
always a clause enacting that the number of Lords Spiritual 
shall in no case be increased by the foundation of these 
bishoprics, but that whenever there is a vacancy among the 
Lords Spiritual by the avoidance of any see in England or 
Wales other than the sees of Canterbury, York, London, 
Durham, or Winchester, the vacancy is supplied by the 
summons of the senior bishop who has not previously become 
entitled to a writ. The five sees above named confer a title 
to a writ of summons at once. 

Between the years 1800 and 1869 one aichbishop and three 
bishops of the Lish Church were sunmioned, in rotation <^ 
sessions, to the House of Lords, but the Irish Church Act, 
^Q, and 33 Vict. c. 42, s. 13, provides that no archbishop or 
bishop shall henceforth be summoned to, or be qualified to sit 
in the House of Lords as such. 

^^^d- 4. Descendibility, A very important limitation upon the 
right of the Crown to issue the writ of summons is found in 
the hereditary character of the Lords of Parliament. The 



§ 4.] EBSTEICTIONS ON SUMMONS. 187 

limitation may be stated and has been disputed in two 
ways: the Crown cannot withhold the writ from a man How it 
whose ancestor has been sommoned by writ and has taken jjgi^t of 
his seat ; nor can it stmimon a man in pnrsnance of a patent "^>°^<>^ 
limiting his peerage, and therewith the right to the summons, 
to the term of his life. 

The writ of summons issued without letters patent andCk>llmBao9. 
followed by the taking of the seat, constitutes a descendible 
peerage, and this has been so held since the latter part of the 
seTentecnth century, when the Clifton peerage was supported 
on the following grounds, thus expressed by the judges who 
were consulted : — 

That Sir Jervas Clifton was summoned to Parliament by the 
name of Jervas Clifton of Leighton Bromswold, by writ, dated 
July 9. 9 Jac. I. 

Thafc he accordingly did come and sit in Parliament as one of 
the peers of England. 

That he died 16 Jac. I, leaving issue behind him Catherine, his 
aole daughter and heir, who married to the Lord Aubigny, after- 
wards Duke of Lenox. 

That the said Duke, 17 Jac. I, was by letters patent created 
baron Leighton of Leighton Bromswold, in the county of Hunting- 
don, to him and the heirs male of his body, whereof none are now 
liTing. 

That the petitioner is lineally descended from him and is his 
heir (by the said report) and as such now claims the barony of 
Clifton. 

All which being admitted to be true we are of opinion, 
First, that the said Sir Jervas, by virtue of the said writ of «um- 
fnonSj and his sitting in Parliament accordingly, was a peer and 
baron of this kingdom, and his blood thereby ennobled. 

Secondly, that his said honour descended from him to Catherine, 
his aole daughter and heir, and successively after several descents 
to the petitioner as lineal heir to the said Lord Clifton. 

Thirdly, that therefore the petitioner is well entitled to the said 
dignity. 

Again, if the Crown creates a peerage by letters patent 
with an accompanying writ, a limitation in the patent to the 



188 THE HOUSE OP L0BD8. [vi. 

Life peen. life of the grantee will be held to invalidate the grant, so fiur 
as it ifi intended to convey the right to a writ of snmmons. 

The qaestion arose and was argued at length and finally 
determined by a Committee of Privileges in the case of the 
Wensleydale peerage. 

It is unnecessary here to go into the question of the 
practical gain to the House of Lords of a reinforcement of 
eminent men whose fortunes might be inadequate to support 
an hereditary peerage, but whose abilities might increase the 
usefulness of a second chamber. We are concerned only with 
the legal aspect of the matter, and it may be stated as follows. 
What ihe If the Queen had addressed a writ of summons to Baron 
miffhT ^Bxlie as' Lord Wensleydale, and there had been no patent 
have done, limiting the grant, the House could not have questioned the 
right of Lord Wensleydale to take his seat, nor could the 
Crown have refused a summons to Lord Wensleydale's heir after 
his death ^. The first of these propositions was laid down by 
Lord Campbell in debate, and admitted ; the second follows 
from the decision in the Clifton peerage case cited above. 
The words of Lord Campbell on the first point are significant. 
' The writ without the patent is conclusive evidence of an 
intention to create a barony in fee, which is clearly within 
the prerogative of the Crown ; but the writ mtA the patent a% 
clearly 9haws the intention merely to give operation to tie paieni^ 
and that the nominee shall have nothing beyond the dignity 
and privileges which the patent may lawfully confer *.' 

It followed then that the House of Lords was entitled to 
consider, on the creation of a new peerage by patent, whether 
the patent conferred such a peerage with such rights as the 
Crown might lawfully confer, and was further entitled to 
resist any claim by the new peer to rights which were not 
conferred by the patent, or, being conferred, were beyond the 
powers of the Crown to create, 
wiiftt it Lord Wensleydale's patent contained what were ultimately 
regarded as two repugnant clauses — a limitation of the 

* Hannrd, oxl. 36a. * Ibid. 331. 



§ 4-] I'l^ PEEBS* 18d 

peerage to the tenn of his life, and a special provision that 
he should be entitled to a writ of sunimons as a Lord of 
Parliament. 

The right of the Crown to create a life peerage by patent 
was practically undisputed, but it was admitted that for four 
hundred years there had been no instance of a ' commoner 
being sent under a peerage &r life to sit and vote in the 
House of Lords,' and it was contended that even before that 
time no such instance had been satisfactorily established ^. 

I will not follow the historical arguments of the learned HlBtorical 
lords who took part in iihe debate, but will be content with •"^8^"™^ • 
the summary of Dr. Stubbs as to the historical probabilities 
of the existence of Lords of Parliament who were life peers. 
There are, no doubt, eases which would seem to be cases of 
intermittent summons, or cases in which a man has been 
flommoned during his life while his descendants have received 
no summons. Prynne has made out a list of these, «md founds Beg. i. 33a, 
upon it an argomeat that a writ »f soinmoiis no moie ^^S- 
necessarily makes a man a hereditary peer of Parliament 
than the return of a man as knight of a shire makes him 
an hereditary member of the House of Commons. But 
Dr. Stubbs tells us that ^on careful examination Prynne's 
list shrinks to very small proportions ; some of the names 
are those of judges whose writs have been confusedly mixed 
with those of the barons ; some occur only in lists of sum- 
mons to councils which were not proper Parliaments. In 
most of the other oases the cessation of the summons is 
explained by the particular &mily history ; for example, the 
son is a minor at the time of his father's death, and dies or is 
forgotten before he comes of age. In others, nothing is known 
of i^e later fSunily history, and it must be supposed to have 
become extinct V 

Dr. Stubbs goes so far as to say that * no baron was ever 
ereftted for life only without a provision as to the remainder 
or right of succession after his death.' 

^ Hknsurd, oxL 335. ' Comt. Hist. iii. 439. 



190 THE HOUSE OF LOEDS. [vi. 

Authentio The W6ll*aathenticated eases of grants of life peerages 
^^J[^^^® appear to fisdl under three heads: — (i) grants for life of 
higher rank in the peerage to persons already entitled to a 
writ of summons in virtue of an existing baronj ; (i) grants 
of baronies for life, with an express provision that the beareni 
of the title should not sit in Parliament^; (3) grants of life 
peerages to women, mostly the mistresses of the last two 
Stuart and the first two Hanoveiian kings. 

None of these support the contention in &vour of the 
l^fality of a creation of a Lord of Parliament for life, and 
if such creations had been proved to be the practice of the 
thirteenth and fourteenth centuries, the disuse of them for 
four hundred years would have been a formidable argument 
against the revival of such a prerogative by the Crown. If 
precedents were to be drawn from times when the rules of 
the constitution were in many respects indefinite, and firom 
the exercise of prerogatives which for hundreds of years 
the Crown had been content to forego, some strange results 
might have been followed in the present century. As was 
pointed out in the debate, much of the Beform Act of 1832 
was needless legislation if the Crown could have resorted to the 
power which it undoubtedly exercised at one time of issuing 
writs to new constituencies and withholding writs from others. 
Just as it was proposed that Queen Victoria should remodel 
the House of Lords, so William IV might have redistributed 
seats and remodelled the House of Commons, on the same 
principle, though doubtless on a larger scale. 
Remit of On the whole the balance of legal argument was strongly 
*'*^'™^*^ ' against the claim of the Crown. With the merits of the 
plan as a source of strength to the House of Lords I am not 
here concerned. The rule of law seems clear. The Crown 
can confer such dignities and with such limitations as it may 
please, but a Lord of Parliament must be an hereditary peer, 
except in the special cases of the bishops and the Lords of 
Appeal in Ordinary, and once an hereditary peer is summoned 

^ Stnbbfl, CoxiBt. Hist. iii. 440, note i. 



§ s] DISQUALIFICATIONS. 191 

the right to a sammonB descends to his heiis, except in the 
special caee of the representatiYe peers of Ireland \ 

5. Alienage is a disqualification for summons. The Act of Alienage. 
Settlement provides that no person bom out of the kingdom, 
imlefls bom of English parents, even though naturalised, can 12 & 13 
be a member of either House of Parliament ; and the Natu- c. 3. ' ' 
ndisation Act of 1870, while it abolishes the proprietary 33 & 34 
disabilities of aliens, provides in the second section that this ^* ^' ^^* 
shall not qualify them for any parliamentary or municipal 
fianchise, or entitle an alien to any right or privilege as 

a British subject except such rights and privileges in respect 
of property as are hereby expressly given to him. 

It must be taken therefore that the Crown's right of sum- 
mons is limited by the rule that none but a British subject 
may receive a writ of summons to the House of Lords. 

6. Banhrupicy. A further limitation on the powers of the Bank- 
Crown must be noted in the case of bankrupt peers. The "*P*^y- 
Bankruptcy Act of 1883 disqualifies them from sitting and 46 & 47 
voting, but an unrepealed clause of the Bankruptcy Dis- 
qualification Act, 1871, provides that 'a writ of summons 34^35 
shall not be issued to any peer for the time* disqualified from ^^' ^' ^^' 
attting or voting in the House of Lords/ 

§ 5. IHsjualificatianifor Sittmg and Voting, 

There are some disqualifications which do not affect the royal 
Tight to issue the writ of summons, but which rest upon the 
individual peer. There would appear to be nothing to pre- 
vent the Crown from summoning such peers to attend, but 
a rule of law or resolution or standing order of the House 
nvoold forbid them to sit and vote therein. 

I. Infancy is such a disqualification, if not by the common infancy. 
law of Parliament, at any rate by a standing order of the 
22nd of May, 1685, to the effect that <no lord under the age of 
one and twenty years shall be permitted to sit in this House.' 

^ Pf rejMreeentotiye Pe6a» of Sootlmd are not individiudly innunoiifld. 



192 THE HOUSE OF LORDS. [VT. 

Felony. q,. Felony is now a disqualification similar in its character 

and effects to the like disqualification in the case of members of 
the House of Commons. For by 33 & 34 Vict. c. 23, the old 
rule as to corruption of blood is abolished, and, except in the 
case of outlawry, the forfeiture which ensued upon corruption 
of blood. A conviction of treason or felony theref<n« no 
longer is held to affect the nobility of blood of the convicted 
person ; but it incapacitates him, if the conviction is followed 
by a sentence of a certain severity^, fix)m sitting or voting as 
a member of either House of Parliament until he has either 
suffered his term of punishment or received a pardon under 
the Great SeaL 

s«^iice ^, Sentence cf the Hau&e. It is nresumed that the House of 
Lords could not, any more than the House of Commons, by 
mere resolution exclude a member of its own body perma- 
nently fiom taking a part in its proceedings. But it can 
disqualify by sentence, sitting as a Court of justice, ather 
upon an impeachment by the House of Commons or, pre- 
sumably, upon trial of one of its own members in the full 
House if Parliament is sitting, if not, in the Court of 
the Lord High ^Steward. And this sentence passed by 
resolution of the House is an actual disqualification, and 
not, as in the case of the expulsion of a member by the 
House of Commons, a punishment which may or may not be 
temporary, as the person expelled does or does not obtain 
re-election. 

Thus the sentence upon the Earl of Middlesex, Lord High 
Treasurer of England, impeached by the House of Commons 
for bribery, extortion, and other high crimes and misde- 
meanours, was settled by resolution of the House, before the 
Commons had demanded that sentence should be passed. 
Lord Middlesex was to be incapable of holding o£5ce, to pay 
a fine to the king, and then came : — 

^ The punlBlunentB wbioh mnst follow oonTiciion in order to produce tMy 
effect are penal servitude, or imprisonment with hard labour for any temiy or 
without hard labour for a tenn of twelve months. 



{ 6.] MOBB OP ACQUIRING THE BIGHT TO SIT. 193 

< The sixth qnestioii, *' Whether the Lord Treaeorer shall 
ever sit in Parliament hereafter, or no ?" 

'Agreed ''that he shall never sit hereafter V ' 

Sentence to this effect was passed on sentence being de- 
manded bj the Commons. Bat the Crown can exercise the 
prerogatiye of pardon and so remove the disqualification and 
restore tiie right to sit and vote. 

4. Tie Oaik. The obligation of the Parliamentary oath 
was not imposed npon the Lords till more than a hmidred 
years after it had been required of the Commons. Bat since 
50 Car. n, c. I, the law respecting the oath has been the 39 Vict, 
same for the Lcxds as for the Commons, and it now depends ^' '^' 
on the Parliamentary Oaths Act 1866. 

§ 6. Modes of aequirin^ right to mi and vote. 

I have now dealt with the limitations which exist on the The rkrht 
right of the Crown in respect of the creation of peers ; the ^J^, ^ 
farther limitations which restrict the right of the Crown to 
gammon those on whom it has conferred the dignity of the 
peerage ; and the disqnalifications which, apart &om any re- 
strictions on the Crown's right of creation or summons, may 
be a bar to a peer's right to sit and vote. It remains to 
consider the process by which the right to sit and vote is 
acquired, before discussing the privileges of the Lords, and 
iheir mode of transacting legislative and judicial business. 

L Peers of tie United Kingdom. 

A peer of the United Kingdom is now invariably created how ao- 
hy letters patent, and these are accompanied with a writ of pa«r of tihe 
summons to the House. On his introduction to the House he V-^^ 

JUBgdOIIly 

presents his patent of {>eerage to the Chancellor, and this 
havings been read is, together with his writ of summons, 
entered upon the Journals of the House. At each succes- 
sive Parliament he receives a separate writ of summons in 
ihe f onn set forth in an earlier chapter. 

^ iH. Lnrcb JonnukU 58a. 



J94 THE HOUSE OP LOEDS. [^' 

A peer who fluoceeds to his peen^e doring infimcy is en^^ 
to hifl srunmonfl when of ftiU age, and makes application to 
the CJhanceUor for a writ. Unless the awe is one of doubt 
the writ is issued at once, and he takes his seat without the 
formalities required in the case of a new peer. If the case 
should be doubtful, the ChanceUor may decline to order the 
issue of the writ. The claimant must then petition the Queen, 
who refers the decision to the Lords, not as a matter of right 
but by custom, for the Crown might, if it chose, determine 
the question upon any advice that it was pleased to ask. Upon 
such reference the Committee of privileges deals with the 
daim, and after hearing evidence reports to the House, and 
the Crown grants or withholds the summons accordingly. 

ii Representative peers of Scotland. 
by Scotch The Act of Union with Scotland makes no provision for 
tiY^^lS^ any addition to the Scotch peerage, so it is not necessary to 
go behind the process by which the Representative peere 
obtain their right to sit and vote. 
ProcUmik- It is provided by 6 Anne, c. 78, that whenever a new Par- 
**^ liament is summoned, a proclamation should be made under 

the Great Seal, commanding the peers of Scotland to meet in 
Edinburgh, or at such other place and at such time as is 
named in the proclamation. This proclamation has to be 
published at the Market Cross at Edinburgh, and in all the 
14& 15 county towns of Scotland ten days at least before the day of 
Vict, c 87. election K The election by custom takes place at Holyrood, 

and is marked by some curious features. 
Election. The Peers sit at a long table, and the roll of peerages is 
called over by the Lord Clerk Register : each answers to the 
peerage in right of which he is present. The roll is a roll 
not of peers but of peerages, so that the same -peer may. he 

^ It BeemB strange that in 1874 the offioiaLi oonoemed in the oondvet of the 
election of Scotch Peen did not appear to be aware that the time had besa 
shortened from the period of twenty-five days required by the Act of Anne* 
(Beport of Committee of Home of Lords on the BepresentatiTe Fecnge ^ 
Scotland and Ireland^ p. ai.) 



§6.] SCOTCH BEPEESENTATIYE PEERS. 195 

caQed two or three times if he happens to represent more 
peerages than one : nor is there any mode of disputing, at 
the trme, the right to be present of any one who answers to 
a peerage called. The roll is then called a second time, and 
each peer rises and reads out his list of those for whom he 
desires to vote. No peer may vote more than once, thongh 
he may represent more than one peerage. At the conclusion 
of this part of the proceedings, proxies are handed in, the 
Lord Clerk Register then reads out the list of sixteen elected 
peers, and makes a return, which he signs and seals in the 
presence of the assembled peers. The Retnm is then sent to 
the Clerk of the Crown in Chancery, and by him transmitted 
to the Clerk of the House of Lords. The elected Scotch peer 
does not therefore receive a special summons, but presents 
himself to take the oath, which is preliminary to taking his 
seat, in right of his election as evidenced by the list supplied 
to the Clerk of the House : he then enjoys his right to sit and 
vote during the continuance of that Parliament. The rules 
of election seem to offer opportunities for the giving of votes 
by persons not entitied to vote ; for those who are assembled 
as representing the peerages on the roll are not required to 
offer any evidence of their right to be present. So when a 
peerage is called the Lord Clerk Register is compelled to re- 
ceive any votes tendered in respect of it except in so far as he 
may be debarred by a clause in the Act about to be referred to. 

An Act of the present reign has, though inadequately, lo ft ii 
attempted to supply a remedy for this inconvenience. It ' °' ^^' 
provides — 

1. That peerages in respect of which no vote hasKecent 
been given since 1800 shall be struck off the roll, and noj^toeleo- 
vote accepted from persons claiming to represent them unless ^^^' 
the Honse of Lords should specially give direction to that 

effect. § I. 

2. That if a right to vote is disputed, any two peers 
present may enter a protest, and the Lord Clerk Register 
is thereon bound to send the proceeding to the Clerk of 

O ^ 






196 THE HOUSE OF LORDS. [VL 

Scotch ParliamentB, and the claim is oonsidered by the Honse of Lords 
tivrpMn. ^^ Committee of Privileges if application is made for such 
inquiry. § 3. 

3. That if a claim has been established in the case of an 
indiiridiial to a particular peerage, no vote is to be received in 
respect of that peerage &om any other than that individual 
during his lifetime. § 4. 

Nevertheless it may happen that a man without any right 
to vote may nevertheless vote, and vote unquestioned, unless 
two peers present should think it worth their while to protest, 
and further to move the House of Lords to inquire into the 
validity of the vote. 

A Scotch representative peer on whom a peerage of the 
United Kingdom is conferred, at once vacates his seat as a 
representative peer, and a new election is held. 

iii. BepresefUative Peen of Ireland. 

Irish It is provided by the Act of Union with Ireland that the 

tivep!&MiL" n^"3[ifcer of Irish peers shall never be reduced below one hun- 
dred, and that until that limit is reached the Crown may 
create one new peerage for every three which become extinct. 
Of the Irish peerage twenty-eight are elected as representa- 
tives of the whole body in the House of Lords, and each repre- 
sentative peer enjoys his right as a Lord of Parliament for the 
term of his life. 
Mode of All the peers of Ireland are entitled to vote at the election 
of the representative peers, and their right to vote is certified 
by the Chancellor of England through the Clerk of the Parlia- 
ments to the Clerk of the Crown in Ireland, in each case of a 
new peer becoming entitled to be placed on the voting roll. 

When an election has to be made, owing to the death of 
a representative peer, a certificate of the death is sent by two 
other such peers to the Lord Chancellor of England, wko 
thereupon issues a writ to the Chancellor of Ireland diiectiii^ 
him to provide for the holding an election. 
The person responsible for the conduct of the election is tihe 



■w^ 



. § 6.] SPIEITUAL PEBES, 197 

Clerk of the Crown and Hanaper in Ireland, who on receipt 
of a warrant from the Chancellor sends voting papers to all 
the peers who apply for them. The voting papers are sent in 
duplicate, each form having a writ attached to it ; the peer 
fills up the duplicate papers, scab them and sends them to the 
Clerk of the Crown. But before filling up the paper he is Mode of 
required to take the oath of allegiance before a judge in ^^ ^' 
England or Ireland, a privy councillor, an Ambassador or 
secretary of an embassy abroad, or a justice of the peace for 
any Irish borough or county. 

After a lapse of fifty-two days from the day of the issue of 
the writ the poll is closed, and the clerk of the Crown hands 
in one copy of the write and voting papers at the Bar of the 
House of Lords, together with a certificate stating the number 
of votes given for each peer who has been voted for, and who 
it is that is duly elected. The elected peer is entitled to a 
writ of summons on his election and at each successive Parlia- 
ment. It may well happen that an Irish peer not resident in 
Ireland has some difficulty in satisfying this requirement. 
And as a matter of £act, Irish peers do lose their votes be- 
cause they cannot, without great inconvenience, present 
themselves before a judge or privy councillor. 

No vacancy is created among the Irish representative Peers 
by the promotion of any one of them to a peerage of the 
United Kingdom. 

iv. Tie Spiritual Peers. 

The form of writ addressed to the Bishop or Archbishop 
entitled to a summons to the House of Lords has been given Ante, p. 50. 
earlier, and it has been noticed that the royal right of summons 
in respect of bishoprics is limited by the Acts, which provided 
for the creation and maintenance of new bishoprics. ItFtooesBof 
remains to consider the process by which a bishop becomes 
0acli, and the steps by which his title is perfected, subject to 
the limitations to a summons to the House of Lords above 
referred to. 



198 



THE HOUSB OP LOBDS. 



[VI. 



C<mg6 



Letten 
miflifiye. 



35 Hen. 



Oath of 
fealty. 



Confixma- 
tioQ. 



On a vacancy in a bishopric or archbishopric, the first stage 
in the proceedings is the notification of the vacancy bj the 
dean and chapter to the Crown in Chanceiy. The Crown there- 
upon grants them a cang^ d^SUre, together with letters missive 
containing the name of the person whom they are desired to 
elect. The cong£ d'flire is merely a form : if the election is 
not made in accordance with the letters missive within twelve 

vni,o. 30. jayg Qf their Veceipt the Crown appoints by letters patent ^. 

Content. The next stage in the process, following npon the election 
by the dean and chapter^ is the consent of the person elected : 
he must signify this before a notary public, and make oath and 
fealty to the Crown. He does this immediately before, and 
as part of the business of his confirmation. He thereupon 
becomes Lord Bishop elect. It remains that he should be 
confirmed in his election, consecrated, and enthroned. 

The confirmation is brought about by the issue of letters 
patent under the great seal, in the case of a bishopric to the 
archbishop of the province ; in the case of an archbishopric to 
four bishops, or to one archbishop and two bishops. The con- 
firmation then takes place before the vicar general of the 
province, who on being satisfied that all the requirements of 
the election are fiilfilled, commits to the bishop elect the care, 
governance and administration of the spiritualities of his 
see and decrees that he should be enthroned. The bishop 
becomes thereupon fit to discharge all the spiritual fiinctions 
of his office. He is not however entitled to its temporalities 
until after consecration. When this has taken place he does 
homage to the Queen for the temporalities of his see, and 
takes an oath of fealty to her. He thereupon becomes entitled 
in his tum^ or at once if he holds a bishopric which confers 
a seat in Parliament immediately, to his writ of summons to 
the House of Lords. 

Do bishops It is a question much disputed, but of almost entirely 

^^ ' historical interest, whether a bishop sits in the House of 

' ^ Wliere, aa in the case of a new bi8hopric,^there is no dean and cfai^>tor, the 

Crown appoints at once by letten patent. 



Consecra- 
tion. 
Homage. 



. J M iimm^'m^m^'^^mmmmm^i^mm^^m^mmmi^m^Kmmm^glf'ea^ 



§ 6.] SPIBITUAL PBBES. 199 

Lords in viitne of a temporal baronj, supposed to be con- 
ferred upon homage being rendered to the Crown, or in his 
spiritnal capacity, by right of long-established castom dating 
from the Saxon assemblage of the wise. On the one side it is 
allied that the bishops after the Conqnest were made to hold 
their lands as baronies ; that though they no longer hold the 
temporalities of their sees by such tenure, they do homage to 
the crown as for a temporal barony; that the lords have 
resolved 'that bishops are only lords of parliament not peers, 
for they are not of trial by nobility,' and that by custom they 
do not vote in trials in full Parliament or in the Court of the Post, 
Lord High Steward. ^' ^'^' 

But in spite of this array of probabilities it seems clear that or in right 
a bishop sits in the House of Lords in virtue of his spiritual aii^f 
office, and not of the temporalities of his see. 

For his writ of summons is, and always has been, somewhat 
different in form from that of the temporal peer. He was 
summoned *fide et dilectione,' and now 'on his faith and 
love,' not like the temporal peer 'fide et ligeantia,' on his 
* fidth and allegiance ' ; and, further, during the vacancy of a 
bishopric or during the absence of the bishop in foreign parts, 
the guardian of the spiritualities was summoned to Parliament 
to represent the spiritual interests of the diocese. Thus in the 
eleventh year of Henry the Seventh's reign writs of summons 
were issued 

' Custodi spiritualitatis episcopatus Lincolnensis, sede vacan^. 
^ Custodi spiritualitatis episcopatus Bangorensis, ipso epi- 

scopo in remotis agente.' 
In the matter of criminal trials in the House of Lords or 
the Court of the Lord High Steward, it is to be observed that 
though the spiritual peers retire before verdict is given, they 
retire under protest. And the resolution of the House of 
Liords excluding bishops (torn trial by their peers depends 
nj>on the doctrine of ' ennobled blood,' of which Dr. Stubbs 
says that ' historically it is a mere absurdity : it is impossible 
to regard the blood as ennobled by law when the nobility of 



200 THE HOUSE OF LOBDS. [TL 

the blood is restrieted to the bearer of the title and does not 
extend even to his younger dhildren/ 

The Bishop sits in the House of Lords in virtue of a writ 

Ante,}^.$o, of summons in the form given in an earlier chapter and 

subject to the rule that there are no more than twenty-six 

spiritual peers, who are also Lords of Parliament in virtue of 

their spiritual peerage ; that of these, five are to consisb of 

the Archbishops of Canterbury and York, and the Bishops of 

London, Durham and Winchester, and that the other bishops 

obtain, in order of seniority, their right to a writ of summons. 

33 & 33 A bishop may resign his see and therewith lose his seat in 

g/g ' ^' ' the House of Lords, though he retains ' his rank, dignity and 

privilege.' 

/v. TAe Lords of Appeal in Ordinary* 

Lord! of Without entering upon the judicial fdnctions of the House 

ppeM ^^ Loids at this stage it is enough to say here that for most 

purposes it is a final Court of Appeal from the Queen's Courts 

in England, Scotland and Lreland ; that there is nothing bat 

the conventions of the House to prevent any peer of Parlia- 

39 & 40 ment from taking part in such Appeals, but that an Act of 
1876^ the .^jHjiftUit»"^!gwMPtioii^iil| has provided that no 
appeal shall be heard or determined unless there are present 
at such hearing and determination at least three Lords of 
Appeal. The Lords of Appeal are of three kinds, the Lord 
Chancellor for the time, such Lords of Parliament as have 
held high judicial office, and the Lords of Appeal in ordinary. 
It is with these last that I am concerned. They are a curious 
exception to the rules which I have been setting forth as to 
the tenure of a right to sit and vote in the House of Lords. 

The Appellate Jurisdiction Act gives power to the Crown 
to appoint two Lords of Appeal in ordinary. Hiey must 
possess certain qualifications — ^that is, they must have held, for 
two years, high judicial office, or have practised at the English, 
Scotch or Irish bar for fifteen years; they are entitled to 
salaries of ji6ooo a year ; and, as judges, they hold office on 



{ 6.] INTEODUCnON AND PBBCBMNOE OP PEEJBS. 201 

a tike tenure to other judges, during good behavioor, unaffected 
by the demise of the Ciown, but removable on an address of 
both Houses of Parliament. 

Besides this, each Lord of Appeal is entitled to the dignity are life 
of B aion fo r his life, and to a writ of summons to attend, and ^^^^"' 
to sit and vote in the House of Lords, for so long as he con- 
tinues to discharge jud^taal dotjigpu. « 

The Peers of the United Kingdom are the only members of 
the House of Lords whose right to sit and vote is descendible. 
Of the rest, the representati ve peers o f Lreland alone enjoy a 
right necessarily co-eztensive with the term of their lives. For 
a Scotch representative peer may lose his seat by non-election, 
or vacate it by the acceptance of a peerage of the United 
Kingdom ; a bishop may resign his see ; and a Lord of Appeal 
may retire fix)m the duties of his office. 

The formalities of the introduction of peers rest on the Introduc- 
standing orders of the House of Lords. peen. 

A peer by descent needs no introduction, but may take his 
seat at any time after attaining the age of twenty-one. 
PeeiB who are summoned in virtue of newly created peerages, 
or in virtue of special limitations in remainder in patents of 
old peerages, are introduced by two peers, their patents per- 
sented to the Chancellor and read by him and their writs of 
summons also presented. The patent and writ are both 
entered on the Journals of the House. This rule does not of 
course apply to the Scotch representative peers. It will be 
borne in mind that, as was described in a preceding section, Ante, 
the taking and subscription of the A<Lf.li nf fil| ^aTift fl is a ^' '^^' 
further preliminary and universal condition precedent to the 
taking of his seat by a peer. 

The ranks and precedence of the members of the House of Bank and 
Lords are not very important for the purposes of this treatise, of peen. ^ 
The title of Duke was first conferred on a subject by Edward 
III, who created his son, the Black Prince, Duke of Cornwall. 



202 THE HOUSB OF LORDS. [vi. 

That of MarquiB dates fiom the reign of Richard 11. Earl- 
doms date from Saxon times. The first Visooont was created 
by Henry VI ; and when we come to the lowest rank of the 
peerage, that of Baron, we are relegated to the antiquarian 
discussion which embarrassed ns at the commencement of the 
chapter, if we wish to ascertain the origin of the title as a 
title of dignity. 

The station of the peers and their precedence within the 

Honse are regolated by an Act of Henry Villi ^ for placing of 

31 Hen. the Lords.' This Act recites that ' in all great cotincilB 

'^''^' and congregations of men having sundry degrees and offices 

in the Commonwealth, it is yeiy requisite and convenient 

that order should be had and taken for the placing, and 

sitting of such persons as are bound to resort to the same,' 

and then proceeds to order where the great officers of state 

31 H en, shall sit, and that * all Dukes, Marquesses, Earls, Viscounts and 

o. lo/i. 7. Barons not having any of the offices aforesaid shall sit and be 

placed after their ancientry as it hath been accustomed/ 



§ 7. Privileges of tie ffouee of Lords. 

It is common to enumerate among the privilege of the 
House of Lords various attributes of that body which are not 
a parfc of its privileges as a House of Parliament. Its various 
judicial functions are sometimes spoken of as its privileges, 
but the greater part of them rest upon a difierent ground. 
The right of its members to enter a protest upon the Journals 
of the House against Acts with which they do not agree, is 
not a privilege but a part of its procedure. 
Frivil^gw It will be well to take the privileges of the House of Lords 
Lords. Ui the order in which I dealt with the privileges of the House 
of Commons, and to note such correspondence or difference as 
may exist. 
^«^»of Firstly, the Lords do not go through the form of asking 
for their privileges. The Speaker of the House is, by pre- 
scription, the Lord Chancellor or Lord Keeper of the Great 



{;.] PBIVILBGBS OF THE HOUSE. 203 

Seal ; in his absence liis place is taken by deputy Speakers, of 
whom there are always several, appointed by commission 
under the Great Seal, and if they shotdd all be absent the 
Lords elect a Speaker for the time being. The woolsack on 
which the Speaker sits, is ontside the limits of the House, 
80 that the office may be discharged by a commoner, and has 
been so discharged when a commoner has been Lord Keeper 
of the Great Seal. Nor has the Speaker of the House of 
Lords the authority on points of order, nor the dignity, in 
relation to the other members of the House, which is pos- 
sessed by the Speaker of the House of Commons. 

The permanent officers of the House are the Clerk of the 
Parliament, whose duties are to keep the records of the pro« 
ceedings and judgments of the House ; the Gentleman Usher 
of the Black Bod, whose duties answer to those of the Ser- 
jeant-at-Arms in the Commons; and the Serjeant-at-Arms, 
who is more especially the attendant of the Chancellor. 

The Speaker then, even on such occasions as he is chosen 
by the act of the House, does not receive any formal approval 
from the Crown, nor are the privileges of the House demanded does not 
by him or by any of its members. These privileges may now privilegM. 
be compared with those of the House of Commons. 

Freedom from arrest is claimed by the Lords as well as by Freedom of 
the Commons. It is claimed by the Lords when Parliament is * P*"®" » 
sitting or witiin the U9ual times cf privilege qfParliament^ ex- 
cept in cases of treason, felony, or refusing to give security for 
the peace ; and this privilege is held to extend to their servants 
and followers during session and twenty days before and after. 

The privil^^ of declining to serve as a witness is now 
waived by the Lords as by the Commons, and that of freedom 
from jury service is confirmed by Statute. 

Freedom of speech has never been questioned as r^^ards the of ipeeoh ; 
House of Lords. 

The privil^e of freedom of access to the person of theofaoceM; 
Sovereign exists for each individual peer, and not, as with the 
House of Conmions, for the House collectively. This right 



204 



THE HOUSE OF LOBDS. 



[VI. 



of exdlad- 
ingdii- 
quaUfied 
penoiu; 



would Beem rather to belong to the magnates as hereditary 
counsellors of the Crown than to the Lords as a House of 
Parliament. 

The right of the House of Lords to see to the due con- 
stitution of its own body is analogous to the right which the 
House of Commons possesses to prevent disqualified persons 
from taking part in its business and to declare the seats 
vacant in virtue of which such persons claim to sit. 

In the exercise of this privilege the House of Lords appears 
to have an undoubted right to decide on the validity of a new 
creation ^, as entitling the newly created peer to sit and vote. 
It exercised this right when, in 17 ii, it came to the decision, 
reversed by it in 178a, that the acquisition of an Engliah 
peerage did not entitle a Scotch peer to a seat, and when, in 
1856, it decided against Lord Wensleydale's claim to take his 
seat as a life peer. But the House has no right to decide on 

^ Lord OampbeU, in the debate on the Wensleydale peerage, sayB : ' By our 
firee constitution there is a tribunal appointed for trying the legality of 
every exerdse of the Boyal prerogatiye which may be qnestdoned. With 
regard to the creation of a Peer, that tribunal is the House of Lards. We 
have no right to consider the merits or demerits of the party who olaima 
to take his seat here, if he be a British subject free from legal disalnlity; bat 
we have a right to see that he shows a title to sit here ex facie good : and if 
he claims by patent, the validity of that patent is necessarily submitted to our 
jurisdiction. We may call in the judges as advisers, but the House deddsn 
propria vigore. Like all other deliberative assemblies, we are neoeesarily 
vested with the power of preventing intruders from interfering with our 
deliberations. Lord Campbell goes on to insist upon the need of diatrngnifih- 
ing two things which he says ' are entirely dissimilar— deciding upon daima 
to an old peerage, and considering the validity of a new creation. It ia quite 
true that with respect to the former we have no jurisdiction except upofn a 
reference from the Grown, and Lord Holt was quite right in refusing to pay 
any attention to any adjudication of this House upon a claim to the Banbuiy 
peerage without any such reference. The power of deciding on theee claims 
the Crown, from the remotest times, has reserved to itself, with suoh advice 
as it may ask. Formerly they were referred to the Earl Marshal and the 
Hereditary Constable, and, according to modem practice in casea of doubt 
and difficulty, they have been referred to this House. The Attomey-GeDenl 
has been the chief adviser of the Crown in peerage casesi, and upon his sole 
advice the Crown may still act respecting titles that have been dormant for 
centuries. • . . But the claim to sit on a new creation by patent is a very 
different proceeding. Here the patent must be produced and read to verify 
the right of the claimant to take his place. If it confers such a dignity as by 
law gives a right to sit here he must be admitted.* 



w» 



i 7.] PfiiyiLEQES OF THE HOUSE. 205 

elaiinB to an old peerage, imlefls the decision ehonld be refened 
to it, as is usually the case, by the Crown. 

It was in the nse of this some right to see that the House of demand- 
is dnly oonstitated that the Lords petitioned the Crown in !I^J^'^ ita 
1606 to send to the Earl of Bristol the writ to which he was ™«>^l^«>*; 
entitled, a committee hairing reported that there was no pre- 
cedent for the action of the Crown in withholding the writ. 
In the same year the King was compelled to release the 
Earl of Amndel, whom he had kept in custody on no such 
charge as took his case oat of the limits of privilege. The 
House met the many evasions and postponements of Charles 
by a^onnung all other business to the consideration of their 
privileges, and thereupon the King set the Earl free from 
restraint^. 

The House is also empowered by the Act of Union with of deter- 
Iieland to determine all disputed claims to Irish peerages ; ^j^mf 
and in respect of disputed claims to vote at the election of 
representative peers of Scotland, a decision may be obtained 
from the Committee of Privileges under the provisions of 
10& II Vict. c. 52. 

No question has been raised, so &r as I am aware, con- of oommit- 
oeming the right of the House to regulate and control its "^^^' 
own proceedings ; and in comparing the privileges of the two 
Houses it only remains to consider the right of the House to 
commit for contempt. The House of Lords possesses wider 
powers in this respect than does the House of Commons ; it 8 Dnmf. & 
can commit for a definite term, and the prisoner is not ^^"^ ^ ^ 
released by prorogation. If however the commitment is not 
lor a specific term, prorogation does, as it would seem, end the 
commitment \ although Lord Denman in SiockdcUe v. Hansard 9 A. & E. 
aeems to have considered this to be doubtful. '''' 

A privilege which the House has for the last seventeen 
years thought it right to forego is that of voting on divisions 
by proxy. The origin of the practice was doubtless due to 

1 EUyoge on ParUAinenta 234 et sq. 
' Maj'i ParUftmenUry Fraotioe, p. ill. 



206 



THE HOUSE OF LOBDS, [Vl. 



the deedie of the king in the early days of Parliaments to 
eecare that the members of the baronage were individnally 
bound by the grants made or the laws agreed to in their 
House. * Those lords,' says Elsynge \ * that could not appear 
according to their summons made their proxiei. But if they 
neither came nor made proxies, then for their disobedience to 
the king s writ they were amerced.' There were occasions 
when the king was not satisfied with an appearance by proxy, 
and on such occasions the writ contained a clause to the effect 
that a proxy would not be admitted. 

The rules which the House adopted for the regulation of 
voting by proxy are now immaterial, for a standing order 
was made on March 31, 1868, that ' the practice of calling for 
proxies on a division shall be discontinued.' 
Protesu. The right of a dissentient peer to record a protest on the 
Journals of the House is not a privilege except in so far as the 
control of its own procedure by the House is a privilege. The 
House of Commons might by standing order confer the same 
right upon its members. But a minority in the House of 
Commons is content with the power of speaking in a debate 
and voting in a division. In the House of Lords a minority, 
or any part of one, enjoys a further opportunity for the 
expression of its views, and can enter the grounds of its 
dissent in the form of a protest upon the Journals of the 
House. 
JadicUl The judicial functions of the House of Lords are fourfold. 
As a Court of Appeal it reviews the judgments of the High 
Court of Justice and Court of Appeal. As a Court of first 
instance it tries great offenders against the State upon im- 
peachment by the Commons. It has a like jurisdiction over 
members of its own body in criminal cases, where a peer j» 
charged with treason or felony: and it is a court for the 
determination of disputed claims of peerage on reference fiom 
the Crown, and of the validity of new peerages intended by 

^ Manner of holding ParliAments in England, p. 1 19. 



duties. 



^^BBI 



*7.] 



PEIVILEGES OF THE HOUSE. 



207 



the Crown to confer a right to sit and vote in the House. Of 
these the first is a function which it inherited from the 
magnum eaneUkm, and cannot be caUed a privilege of Par- 
liament ; the second is a duty which it discharges in con- 
junction with the Commons as the High Court of Parliament ; 
the third is merely an application of the role in Magna 
Charta that a man should be tried by his peers ; the last is 
a privilege analogous to that enjoyed by the Commons of 
declaring a seat vacant where disqualifications exist, and, 
until recently, of determining disputed returns. 



CHAPTEB VII. 

THE PROCESS OF LEGISLATION. 

We have now not only brought oar Parliament together, 

bat have analysed its constitaent parts, and have ascertained 

how they come into existence, and of what they consist. Oar 

next step most be to consider how they act. 

ftl^l^M^^ The most prominent and perhaps the most important 

of Parliap fimction of Parliament is legislation ; for serious as are the 

ment moit . , 

strikiiig duties whlch Parliament discharges in the selection and criti* 

hero pIt- ^^^ ^^ ^^^ Executive, the Ministers of the Crovni, it is in 

liAment ia legislation that the sovereignty of Parliament displays itself. 

Its control over the executive though stringent is indirect : 

its control over every rule of conduct which it may choose 

to take in hand is direct and absolute. 

I would speak of the absoluteness of legislative sovereignty 
with the reservations so clearly set forth by Professor Dicey ^, 
and would make it clear that the omnipotence of Parliament 
is dependent on a certain correspondence between legislation 
and public opinion, a correspondence which must be more or 
less close in proportion to the tractabQity, the poUtiGal 
capacity, the power of organisation of the governed. The 
^^^ law-maker in a despotism must consider first whether his law 

tionB on ^ -"^ 

itsBOYo- will cause a revolt; and next whether he has force at his 

^^ ^' back to crush it. The law-maker, in a state where the bulk 

of the population elects those who make the laws^ has to oon- 

^ L*w of the CooBtitutioii, p. 71 sq. 



I Ji "^ 



Sect. I. § I.] THE BIGHTS OP THE COMMONS. 20$ 

sider whether the m^jorily will approve^ or at any rate will 
accept his law. 

But given a certain correspondence with public opinion, 
and Parliament ia omnipotent. From it there is no appeal 
save to the electozate, and the Crown only can make that 
appeal. Parliament could recast the framework of the eze- 
entive, which it is generally content to criticise. The courts 
of law will not yentore to consider whether its enactments are 
advisable, they will only endeavour, when required, to ascertain 
what those enactments mean. 

This supreme legislative power, which is the outward and 
viable sign of sovereignty, the nearest approach to that 
monster of absolutism which Austin created for himself, is 
the form of Parliamentary action upon which our inquiry 
should first turn. If Parliament is sovereign, it would seem 
natural to look first at the mode in which its sovereign attri- 
butes are shown, and later at the duties of Parliament as a 
grand Court for national grievances, and at its critical attitude 
towards the executive. 

I propose, therefore, now to consider the process of legisla- Division of 
tion in Parliament, and to divide the subject into four heads, '^''^^^' 
aa follows : — 

1. Antiquities of legislative procedure. 

2. Ordinary procedure of the Houses. Public Bills. 

3. Money Bills. 

4. Private Bill Legislation. 

ft Section I. 

AirnqmnEs of lbgisiative frocsduius. 

§ I. Tie Bights cf the Commons. 

In considering how at different times laws have been Legiala- 
£nuned and passed, we need not regard the forms in which p^hi^q^ 
the charters and assizes of the Norman and Angevin kings existed. 
were issued. We are concerned only with legislation by the . 
Crown in Parliament. Magna Charta is, at least in form, 

P 



210 THE PE0CBS8 OP LEGISLATION, [vil. 

a treaty rather than a statute, though it is issued per conMium 
venerabUium patrum^ et nobilium virorum ; but other enactmentB 
of kings, though made before the representation of the counties 
and boroughs in the Commons, are made by the advice and 
with the assent of the national council. Whatever may have 
been the respective shares of the king and his counsellors, legis* 
lation proceeded from the king with the counsel and consent 
of a body of advisers variously constituted from time to time. 
The steps were gradual by which the Commons became 
partakers in this counsel and consent, and established thereby 
the legislative sovereignty of Parliament. The Confirmatio 
1997. Cartarum is a solemn affirmation of the right of the Commons 
to be parties to taxation : an act of the fifteenth year of the 
reign of Edward II is a like affirmation of their right to be 
parties to legislation. 

The Confirmatio Cartarum runs thus : — 

Bightflof ^v. And for so much as divers people of our realm are in fear 

moiiB in" ^^^ ^^^ ^^ ^^^ tasks which they have given to us before 

f^^ ^ time towards our wars and other business, of their own giant 

and goodwill, howsoever they were made, might turn to a 

bondage to them and their heirs, because they might be at 

another time found in the rolls, and so likewise the prises 

taken throughout the realm by our ministers: we have 

granted for us and our heirs, that we shall not draw such 

aids, tasks nor prises into a custom, for anything that hath 

been done heretofore, or that may be found by roll in any 

other manner. 

* vi. Moreover we have granted for us and our^eirs, as well 
to archbishops, bishops, abbots, priors and other folk of holy 
Church, as also to earls, barons and to all the commonalty of 
the land, tAat for no hunnest henceforth mil we take 9uei 
manner of aide, taeks nor prisee, but by the common ateent of 
the realm, and for the common profit thereof, eaving the aneietU 
taeke andprieee due and accustomed* 
of legUU* And the Act of 1322 is even more explicit on the legisla- 
^ tive rights of the Commons, 



Sect. I. §2.] CLAIMS OF THE CEOWN TO LEGISLATE. 211 

* The matters which are to be established for the estate of 
our lord the king and of his heirs, and for the estate of the 
realm and of the people, shall be treated, accorded and esta- 
blished in parliaments by oar lord the king, and by the assent 
cf the prelates^ earls and barons, and the commonalty of the 
realm, according as hath been heretofore accustomed/ ^5 Ed. II. 

But though the participation of the three estates of the Diffionltieg 
realm was thus early declared to be essential to the validity ezezciBe of 
of taxation and of legislation, yet as a matter of practice it ^^bti. 
was a long time before the process of legislation assmned its 
present form. There were two causes at work to produce this 
delay. The Crown in Council possessed and exercised a con- 
eurrent legislative power, inconsistent with the requirements 
of the Statute of Edward II for the participation of Crown, 
Lords and Commons in all legislative acts. And again, the 
mode in which the Commons at first exercised their right to 
partake in legislative functions was ill-adapted to secure that 
they obtained their due share in the framing of the required 
laws, 

§ 2, The claims of the Crown to legislcde. 

The first of these obstacles to the full recognition of the 
legislative rights of the Commons is found in the concurrent 
l^^lative power of the Crown in Council This survival of 
the pre-Parliamentaiy Constitution is manifested in the 
distinction so difficult to be drawn by the student of con- 
stitutional history between Statute and Ordinance. The Statute 
recognized differences between these two modes of legislation nanoe: 
are described by Dr. Stubbs as being differences partly of 
form, partly of character^. 

The Ordinance is put forth in letters patent or charter, and how dUh 
is not engrossed on the Statute Roll ; it is an act of the king 2u^ * 
or of the king in council ; it is temporary, and is revocable 
by the king or the king in council. 

The Statute is the act of the Crown, Lords, and Commons ; 

> Const. Hist. ii. 584. 
?2 



212 ' THE PBOCESS OP LEGISLATION. [VH. 

it is engrossed on the Statute Roll ; it is meant to be a per- 
manent addition to the law of the land ; it can only be revoked 
hy the same body that made it and in the same form. 

The Ordinance in fiu;t seems to follow the form of legisla- 
tion which was in use when the Crown discharged both 
legislative and executive functions. Its existence indicates 
the difficulty which is noticeable for some time after Parlia- 
ments were at work in distinguishing the Amotions of the 
Crown in Parliament from those of the Crown in Council, 
of the ' Magnates ' as Councillors of the Crown from the same 
persons as a House of Parliament. 

niuBiirft- A ffood illustration of the view which the mediaeval Par- 

tion. . ® 

liaments entertained of the difference between Statute and 
Ordinance is to be found in the proceedings of the year 1340. 

Rot. Pari. ^Q petitions of that year were dealt with in two groups. 
One of these was ordered to be dealt with by a joint com- 
mittee^ of the two Houses and related to such articles as were 
intended to be perpetual. These were ' by the common assent 
and accord of all ' to be put into a Statute, to be engrossed 
and sealed, and the Statute was to commence ' To the Honour 
of God, &c.' * 

The other group related to 'such points and articles as 
were not perpetual but for a time,' and with these the king 
was to deal, with the assent of Lords and Commons, by letters 

Bot. Pari, patent, to conmience in this manner 'Edward, &c., know that 

ii. 113. 

whereas the Prelates, Earls, &c. 
Ordaining As the relative positions and duties of Crown and Parlia- 
Orowh ment grew more definite. Crown and Commons alike realised 

^ The Committee consisted of prelates, temporal peers and jadges^ twelT« 
knights of the shire, and six bnigeeses. 

* The Statute runs thus : — 

' To the Honour of God and of Holy Church, by the assent of the FreHatea, 
Earls, Barons, and others assembled at the Parliament hdden at Westmin- 
ster, the Wednesday next after Mid-lent in the 14th year of the reign of oior 
Lord King Edward the Third of England and the first year of his r^gn d 
Franoe : tihe king for the peaoe and qtdetness of his people, as weU great ma 
small, doth grant and establish the things underwritten, which he wiU to be 
holden and kept in all points par^etuatty to endure,* 



^•SXi 



Sect, I. §2.] CLAIMS OP THE CEOWN TO LEGISLATE. 213 

the imporianoe of this independent exercise of legislative qneBtloned 

power by the Crown in Coancil. One may note how the h^m."^ 

oonfiision is gradually cleared away in the course of the reign 

of Edward III. During that reign various experiments were 

tried for raising money at councils to which a limited number 

of knights and burgesses were summoned. Thus in 1353 an ninstra- 

assembly of this sort sanctioned the Ordinance of the Staple^, *^^^ 

whereby trade was regulated, a new capital offence created 

and a source of supply secured to the Crown. But the 

Commons present at this council protested against the 

enactment of matter so grave, unless in Parliament and in 

statutory form, and petitioned that the ordinances so made 

' should not be of record as though they had been made by 

a general Parliament.' The king thereupon promised that 

steps should be taken to publish the Ordinances of the Staple 

and that in the next Parliament they should be rehearsed and 

put on the Boll of Parliament. Next year a Parliament, duly 

constituted, confirmed the Ordinances ^ to be held for a Statute 

to endure always' and provided against further dealing with ^ ^*- 

the matter save by consent of Parliament. 257. 

The concision between Statute and Ordinance gradually a source 
passed away, but as it passed away the Crown came to assert l^ X^jth^ 
as a part of its prerogative the right to legislate independently o«n*^^' 
and so to make the work of Parliament needless, or to inter- 
fere by saving clauses and dispensations with the operation of 
Statutes, and so to make the work of Parliament nugatory. 
The Koyal Proclamations of the sixteenth and seventeenth 
centuries form the battleground of the old controversy which 
is fought under changed names, and the right of the Crown 
to tax or to l^slate without Parliamentary sanction is 
asserted and disputed in one form or another from the 
Ordinance of the Staple to the Bill of Rights. 

^ The ttaple seems to bATe been a syBtem for the resnlation of markets in 
eertain towns, where goods were brought for sale and sold after trial of their 
quality to meiehants who had a monopoly in dealing with such goods. The 
maiket and the monopoly were alike matters of royal grant, and were granted 
in reiom for oontribntion to royal revenue. 



214 THK PEOCESS OF LEGISLATION. [vil. 

§ 3. The share of the Crown in framing Laws. 

sutntes The difficulties which arose from the mode of procedure in 

down 0/ f^aniing and pajssing laws were of a different kind. At the 

g|^^ ^'^ outset of our Parliamentary history statutes were drafted and 

enacted by the Crown in Council on the petition of the estates 

of the realm, and the first questions arose upon the necessity 

for the assent of all to the petitions of each. 

Wm it The procedure of early Parliaments is obscure, and for our 

tliAt ftU purposes not very important. The date at which Lords and 

^idd Commons held separate sessions is uncertain, if indeed it is 

oonour; certain that they ever sat together. The £act that the 

baronage, the clergy, the knights, and the burgesses voted 

money in different proportions suggests, not two sessions, but 

four. At any rate, by the year 1341 the clergy had ceased to 

attend, and the Lords and Commons sat apart. But the 

necessity for a concurrence in legislation of the two estates 

which constituted Parliament does not seem to have been 

recognized for some time affcer the Statute of Edward 11 had 

ostensibly secured the l^islative rights of the Commons. 

Apart from the Statute Quia Emptores passed instantia 
magnatum^ which belongs to an earlier date, we may accept in 
proof the statement of Dr. Stubbs that ' although in 1340, 
1344, and 1352 the statutes passed at the petition of the 
clergy received the assent of the Commons, it seems almost 
certain that from time to time statutes or ordinances were 
passed by the king at their request without such assent *.' 

The abstention of the clergy, as an estate, from Parliament 
settled any question that might have arisen as to the need of 
their assent to petitions of the Lords or Commons, and 
throughout the fourteenth century the Commons adopted 
and merged the separate petitions of the * magnates ' in their 
own, even in matters such as the trial of peers, which exclu- 
sively concerned the Upper House, 
rouble The twofold duties of the peers as an estate of the reakn 

capacity of 

P««"- * Stubbs, Const. Hirt. ii. 595. 



Sect, I. §3-] SHAEE OP THE CEOWN IN FRAMING LAWS. 215 

and as conncillors of the Crown, makes it difficnlt throughout 
the fourteenth centuiy to discoyer how far their concurrence 
in the petitions of the Commons was needful to secure the 
assent of the Crown. For the king might be moved to reject 
a petition either because the Lords did not concur in it, 
flitting as a House of Parliament, or because they advised him 
to refuse it in their capacity of councillors of the Crown, 

Setting aside these questions of initiation and concurrence Ordinary 
as relating to exceptional cases, we may pass to the ordinary j^^l^ai 
mode of legislation by statute made on petition of the Com- legu^^^ioi^- 
mons. The king summoned a Parliament, partly for advice, 
nudnly for supply. Having stated his need of a grant of 
money, the Commons stated their need of legislation, usually 
for the maintenance of customs or the correction of their Petitioii. 
abuse. Grievances came before supply, and the grant of 
money might perhaps depend upon the answers received by 
the Coinmons to their petitionfl. Hence the ordinary form of 
words intended to imply rejection was constructed so as to 
seem to mean merely a postponement. A fiivourable answer Answer. 
was couched in the words, ' le roy le veut,' an unfavourable 
answer in the words, ' le roy s'avisera.' 

But an affirmative answer to their petition did not neces- 
sarily give to the Commons aU that they desired in the way 
of legislation. Under the most favourable circumstances the 
king, with the assistance of his council, framed a law in 
accordance with the terms of the petition, and this law was 
engrossed in the Statute Book ; or if the matter was of tem- 
porary importance it was regulated by ordinance in letters 
patent. 

But the wishes of the Commons were apt to be defeated in Imperfect 
various ways even though their petitions had received the^"^^. 
royal assent. For sometimes it was either forgotten or inten- ^f ^*P"" 
tionally laid aside after Parliament had broken up, and then 
no law was made. Sometimes a law was made, but not in 
accordance with the terms of the petition. Sometimes the 
law was made in a satisfactoiy form, but accompanied with 



216 THE PROCESS OF LEGISLATION. [VII. 

saving clanseB which enabled the ^ing to suspend it for % 
time, or dispense with its operation in certain cases. 

Attempts Th« Commons attempted in many ways to secure tiiat their 

tooUamit. petitions, when answered in the affirmative, shonld be made 
into etatntes in the form and to the intent required, and firee 
from the possibility of sospension or revocation. 

They asked to have the answers of the king set forth in 
writing and sealed, so that they might be assured of a corre- 
spondence between answer and petition. They annexed eon- 

M^- ditions to the grant of supply to the effect that the petitions 
exhibited by Lords and Commons should be affirmed just as 

1341- they had been granted by the king. Their efforts seem to 
have been chiefly directed to procuring the due enactment in 
Statute or Ordinance of such provisions as were intended to 
be respectively permanent or temporary, and one may suspect 
from the tenour of tiie frequent petitions of the Commons that 
the king was apt to employ the revocable form of Ordinance 
where the Comm<m8 desired the permanent form of Statute, 
and to issue charters or letters patent instead of entering the 
required provisions on the Statute Boll. 

The Commons seem to make a nearer approach to a control 
over the details of legislation when they petition, aB they did 
in the reign of Henry V , that no statute should be enacted 

w, Bot. without their consent, and receive for answer * the king of hia 
grace especial granteth that from henceforth no thing be 
enacted to the petitions of his Comune that be contrarie of 
their asking whereby they should be bound without their 
assent. Saving alway to our liege lord his royal prerogative 
to grant and deny what him lust of their petitions and asking 
aforesaid.' The growing influence of the Commons in legis- 
lation is marked by the changes in the form of the enacting 
clause of statutes. 

Forms of The Statute of Westminster i. is thus described as 'Eta- 

enactmeiLt. 

blissement le Boi Edward &it par son conseil et par Tassentement 
des Erceveques, Eveques, Abbes, Priors, Countes, Barons, et la 
eomminalte de la tene illoeque somous.' From the year 13 18 



~~ ^^~" • I 



Sect, I. §4.] COMMBNOEMBNT OP MODERN PBOOEDUEB, 217 

imtil the aooession of Edward III Statutee are expreesed to 
be made by the assent of the prelates, earls, barons, and tiie 
commonaltj of the realm. From the commencement of the 
reign of Edward III the mode of legislation upon petition 
finds expression in the words ' at the request of the Commons,' 
though sometimes both Houses are described as petitioners, 
as in the form ' Le roy supplie feust par les Prelats, Countes, 
Barons, et les communaltez/ 

It is not till the nth of Heniy VI that the words 'by 
authority of Parliament ' come in, thereby placing the Houses 
upon a level in legislative power ; and a little before that date 
the ^request' of the Commons begins to drop out. The 
enacting clauses are not uniform, but gradually throughout 
the reign of Henry VI statutes ceased to be enacted by the 
request of the Commons and are enacted by the authority of 
Parliament, and from tiie ist of Henry VII the request is 
never revived. 

§ 4« Commencement of modem procedure. 

But the substantial remedy for the difficulty which I have 
deseribed was found when, as took place in the reign of 
Henry VI, the Commons adopted the practice of framing The Com- 
their petitions in statutory form, and requested that the form the bills 
should not be altered. Dr. Stubbs tells us that this custom ^^^ ^*°*' 
was introduced * first in the legislative acts which were origi- 
nated by the king' ' ; an early instance of its adoption by the 
Commons is to be found in the Parliament Bolls of 1429, 
when they ask that Hhe Bill which is passed by the Com- 
munes of yis present Parliament ; hit lyke unto ye king by 
yadvys of the Lordys Spirituell and Temporell in yis present 
Parlement, yat graciously hit may be answered after the 
tenure and fourme yerof/ Bot. Purl. 

There is a further indication of the change in the not ' ^ 
onfrequent use of the expression, ' billa formam actus in se 

1 Conct. Hist. iii. 463. 



218 



THE PBOCESS OF LEGISLATION. 



[VII. 



Three 
readings. 



Effect of 
new pro- 
cedure; 



continens^ ' : meaning that the ' bill,' which in Parliament, as 
in the Chanceij, was the usual vehicle for a petition, did not 
contain a petition only, but the scheme or draft of a statute. 

It is not easy to ascertain the commencement of the practice 
of reading a petition or bill three times, and to say when the 
Lords read and considered and rejected such a petition acting 
as a House of Parliament, and no longer as Councillors of the 
king and as parties to his decision. 

For our purposes it is enough to note that by tbe reign of 
Henry VII, Parliamentary procedure, so fisir as legislation is 
concerned, had assumed its present form after passing through 
the phases which I have described. In the reign of Henry 
VIII we can trace in the Lords' Journals the entire course of 
a bill through that House ^, and when we begin the Commons 
Journals with the reign of Edward VI, we find the three 
readings to be the practice of the lower House also, 

Difiierent as was the practice of a medisBval Parliament to 
that of the Parliaments of our own time, we can trace even in 
the conduct of legislation during the fourteenth century the 
rudiments of modem procedure. The king opened Parliament 

^ The phrase perhape Burvivee in the modem heading of a biU sent from ome 
or other House ' A bill intituled an Act.* 

' It may be interesting to trace the progress of a bill through the House of 
Lords, I Hen.yin. 

* 8» die Parliamenti. 
' Item Billa de Forests, et de feris extra suas blausuras pansaa siye indaginei 
lidte yenandis, et interficiendis lecta est jam prime. 

^ za^ die Parliamenti. 
' Item Billa de Forests et feris extra parcas et fbrestas interficiendis, lecta 
est jam secunda vice. 

' I4« die Parliamenti sexto Februarii* 
'Item Billa de Forests et feris extra parcas sive forestas yenandis et interfi- 
ciendis lecta est jam tertio cui omnes Domini assenfcm prebnenmt. 

' I5« die Parliamenti. 
' Item Billa de feris extra parcas et forestas yenandis missa est in domom 
inferiorem, nuntio derico Parliamenti. 

•330 4jie Parliament!, 

' A dome inferiori adducte sunt sex Bille 
I De Forestis quem approbat Domus inferior. Exp^dita.* 



Sect. I. §4.] COMMBKCBMBNT OP MODERN PEOCEDUBB. 219 

wiiih a statement of hia wants and a promise to redress griev- 
ances; petitions were based upon grievances and presented 
before the grant of supply : the petitions and the subsequent 
grants passed from Commons to Lords, and received the royal 
assent in words still in use. When the intended statute was 
drawn np in a bill, and no longer left in the inchoate form of 
petition, it offered fuller opportunities for discussion and prob- 
ably rendered necessary a close attention to procedure and 
the rules of debate. 

Bat the form of legislation by bill presented for the accept- 
ance or rejection of the Crown did much more than help to 
formulate Parliamentary procedure, or to secure the due effect 
of the royal assent to a petition. It established the distinc- 
tion between Executive and Legislature, the Crown inininereM- 
Council and the Crown in Parliament ; and though in seem- onParliA^ 
ing it was merely a change from the suggestion of a topic ot^^^^ 
legislation to the suggestion of a topic clothed in the form 
of legislation, it really laid the foundation of the omnipotence 
of Parliament. 

Until this mode of legislation came into practice, the 
Houses had petitioned the crown for the redress of public 
grievances, just as the suitor petitioned the Crown in Chan- 
cery for the redress of a private and individual grievance. 
The legislative act came from the Crown, and though Lords 
and Commons might complain of legislation, which was not 
initiated or embodied in their petitions, yet such legislation 
did take place from time to time, and all laws were left to the 
Crown to make, and depended for form and time of making 
npon the pleasure of the Crown. 

Sat when the Houses of Parliament took into their own 
hands the drafting of Statutes, their demands for legislation 
became definite and urgent ; the laws which they desired to see 
made could not be varied, postponed or nullified. They no 
longer asked the Crown to assent to the making of a law on a 
given subject, and then to make one, but they asked it to say 
'yes ' or ' no,' to the passing of a law drawn in the form in 



220 THE PEOCBSS OF LEGISLATION. [VIL 

Mrhicli they wished it to pass, and no longer admitting of 
amendment. 

When the Crown could no longer control legislation, except 
by refusing afisent to laws framed and presented for its accept- 
ance or rejection, there had plainly arisen a new legislatiTe 
power outside the executive. The Houses and the Crown had 
changed places : the assent of the former had hitherto been 
required to measures generally initiated by them, but always 
framed by the Crown : henceforth assent or rejection was all 
that was left to the Crown in dealing with measures initiated, 
framed and passed by the House. 

A full account of the antiquities of Parliamentaty procedure 
might fill a volume with interesting matter, but the brief 
sketch which I have just given may suffice as an introduction 
to what is important for my present purpose, the mode in 
which laws are framed and passed at the present time. 

SBonoN II. 

OBDINABT PJELOCEDUBE OF THE HOUSES. PUBLIC BILLS. 

§ I. Budnesa of each day. 

In order to follow tiie process of legislation it is necessary 
to consider, however, briefly and in outline the forms of business 
of the Houses, because it is somewhat difficult to trace the 
steps by which a bill becomes law, if those steps traverse a 
region with which the reader is wholly unfamiliar. Perhaps 
the simplest way of getting at the procedure of the House of 
Commons will be to take the Standing Order, which states the 
ordinary business of the day, to consider what the various 
items of business mean, and to select for further inquiiy so 
much as is relevant to my present purpose. 

Standing Order No. 98 runs thus : — 

The House generally proceeds each day with : i. Private Bosi- 
ness ; 2. Public Petitions ; 3. Giving Notices of Motions ; 4. Un- 
opposed U otions for Betums ; 5, Motions for leave of Absence ; 
6. Questions ; 7. Orders of the Day and Notices of Motions as set 
down in the Order Book. 



Sect.n.§i.] BUSINESS OF EACH DAT. 221 

I will examine these in order. 

I. Private busineu means private bill l^islation, and iPrivBte 
propose to defer the treatment of this until I have condaded 
the more important topic of pablic bill le^lation. 

3. Pitblic Fetitioni are petitions from localities or bodies of Public 

petitioxui. 

persons relating to matters of public policy and general con- 
cern which are under the consideration of Parliament, or 
Fhich it is desired to bring under the consideration of Par- 
liament. They must be distinguished from the private 
petitions which form the first stage in private bill legislation. 
These public petitions are a feature in the aspect of Par- 
liament as the Grand Inquest of the nation, and I shall have Po^ ch. x. 
more to say of them in the concluding chapter of this book. ^ ^ 

3. Giving noticei cf motion. * Every member/ says Sir E. Notices of 
If ay, ' is entitled to propose a question, which is called moving 

the House, or, more commonly, making a motion: but in order 
to gire the House due notice of his intention and to secure an 
opportunity of being heard, it has long been customary to 
gire the House notice of his intention, and to have it entered 
in the Order book or Notice paper.' 

The precedence of these questions is established as follows. 
A member who desires to propose a question to the House 
must, in the first instance, place his name upon the notice 
paper. Each name on the notice paper is numbered, and 
when the time for this part of the business of the House 
aniTee, the numbers are all put into a ballot box, shuffled, and 
drawn out one by one by an assistant clerk. As each number 
is drawn, the name of the member to whom it belongs is 
called by the Speaker. The member thereupon gives notice 
of bis motion and gets priority of choice of day and hour 
according to the order in which his number comes out of 
the ballot box. 

4. Motions for Beturm are motions for accounts or papers Motions 
to be supplied to the House. If no opposition is raised to '^ ' 
sticb motions they are allowed to come on in the place as- 
eignei, to them in. the list of business in the Standing Orders. 



222 THE PROCESS OF LEGISLATION. [viL 

for iMveof 5* MotioM far Leave ofAheenee, A member is supposed to 
* ' be always in attendance upon the House; if, therefore, he 
desires to be absent for anj time, he must apply for the leave 
of the House, and this may be g^ranted or reftised^. 

In the sixteenth and seventeenth centuries, when members 
did not live with the fear of the constituencies before their 
eyes, absence without leave was regarded as a serious impedi- 
ment to business. Nowadays the evil remedies itself: a 
constituency will not return a member "who neglects his 
duties ; but when the constituencies did not know or did not 
care how fiur their members attended to the business of the 
House, it was necessary to deal with the matter otherwise. 
6 Hen. Thus an Act of Henry VIII exonerates a shire or borough 
^™'-«from payxneut of w.^ to members who left Parliamlt 
before the end of the Session without a licence from the 
Speaker, which licence was to be ' entered of record in the 
book of the derk of the Parliament appointed for the Com- 
mons House.' And the House seems to have been inclined to 
treat as vacant the seat of a member who, from his engage- 
ments elsewhere, was unable to take part in the business of 
the House. 

Thus on the 1 8th of February, 1 6%^^ * Mr. Oay informeth the 
House that he is returned a burgess for the City of Bath, and 
is mayor of the same city ; and besides, one of the principal 
men of their city hath murthered himself, and his wife ; and 
that the mayor is the only coroner, and therefore deeiretii 
leave to go home. 

* Referred to the Committee of Privileges whether a new 
writ shall issue. 

* Resolved, upon the causes alleged by Mr. Gay, he shall 
have liberty to depart home to the City of Bath, abont those 
a&irsV 

The House, as has been already noticed, in dealing with the 
disqualification of unsoundness of mind, is now reluctant to 
declare a seat vacant on the ground of incapacity to attead 

^ 83 Com. Joor. 376. ' Com. Jour. 8az, 



Scct,n.§i.] BUSINESS OP BACH DAT. 223 

ParliEment- ^ But a member who contumaciously refuses to 
fulfil the duties of membership may be placed in the custody 
of the Serjeant-at-arms, and though the only recent case of 
this nature relates to attendance at a Committee^, there seems 
no reason why non-attendance after leave of absence refused 
should not be treated as a contempt. 

6. Questions. These are inquiries addressed to Ministers QumUoiis. 
of the Crown, or to members concerned in the business of the 
House, on matters connected with the business of Parliament 

or with the administration of government. Such inquiries 
ought not to be of an argumentative character, but should be 
so framed as merely to elicit the information wanted. Nor 
should the answer do more than convey such information, 
though a Minister of the Crown may sometimes go further in 
the way of explanation : and he may also, in the interest of 
the public service, decline to answer the question. 

7. Orders of tie Day and Notices cf Motion, These are Orders of 
either matters which the House has ordered to be discussed on 

a given day, or matters of which notice has been given, and 
which come on for discussion in their order of priority on the 
day selected by the mover. 

There are certain days in the week appropriated to the 
discussion of matters which the House collectively has ordered 
to be discussed. These are Mondays, Wednesdays, Thursdays, 
and ^Fridays '. On all these days except Wednesday the GoTorn- 
Ministry has the right of placing first on the Orders of the nights. 
day such matters introduced by the Government as the House 
has ordered to be discussed, and on Friday the first order is 
the Committee of Supply or Ways and Means. 

N^otices of Motion, therefore, come first only on Tuesdays, 
though on Fridays, when Supply is the order of the day, there 
is a certain latitude of preliminary discussion which I will 
describe hereafter. 

s GMe of Mr. Smith 0*Brien,lzzxyHaDsard 1291. And see oase of Mr. J. P. 
Hir*****— ^y, dyi Hansard 1931. 

* Tlie House only sits on Saturday, by speoial resolntion, and rarely for the 
of any bat Government business* 



224 THD PEOCBSS OF LEGISLATION. [VEL 



^ 2. A Public Bill in lie Commons^ 

When a bill fiist comes before the House it must oome on 
in the form of a notice of motion. A bill may take its origin 
fix)m the Lords or the Commons, but it will be convenient to 
trace it through its progress to the maturity of a Statute 
beginning, as most important bills b^n, in the House of 
Commons. I will then point out such difference of jNroceduie 
as may be noticeable when a bill takes its origin in the House 
of Lords. 

Motion for First, the member who desires to introduce a measure 

introdaoe gV^^ notice, as aboYC described, of his intention to do so. 

a bill. When the motion comes on in its order, he moves for leave to 
introduce a bill, using no more words, usuaUy, than are 
necessary to explain its purport. Thereupon an order of the 
House is made that the BiQ be prepared and brought in by 
the mover and seconder, other names being sometimes added 
by the House. The Bill may then immediatdiy be presented, 
which is done by the member appearing at the bar, where- 
upon the Speaker calls upon him by name, he calls out, * A 
Bill, Sir,' and is desired by the Speaker to bring it up. He 
brings it to the table, and delivers it to the derk of the House, 
by whom its title is read aloud. The questions that a bill ' be 

Fint now read a first time,' and that it be printed, are put without 
amendment or debate : an order is then made that it be read 



reading 



a second time on a day named. 
^^V^^ ^6 Bill then takes its place among the orders of the day, 

and when the second reading comes on in due course a motion is 
made, and question put ' that the Bill be now read a second 
time.' This is the point at which the general principle of the 
biU is most frequently and folly discussed and its fete decided. 

• An opponent may move that the bill be read a second time 
that day six months, which shelves it for the Session, or may 
meet the motion with a direct negative which shelves it for 

• . ^' ^^ ^*y move, by way of amendment, resolutions 
Which affect or alter the chamcter of the bilL 



Sect. II. §3-] EXCEPTIONAL PEOCEDUEE. 226 

If the bill passes its second reading it is committed to a The bill in 
Committee of the whole House. Snch a Committee is ap- °^^^ 
pointed by a resolution 'that this House will resolve itself 
into a Committee of the whole House.' The Speaker there- 
upon puts the question, ' that I do leave the Chair.' This being 
agreed to, he leaves the chair, and the Chairman of Committee 
presides. The bill is then discussed in detail clause by clause. 
At the conclusion of each sitting of the House in Committee 
on the Bill, the Speaker resumes the chair ; the Chairman of 
the Committee reports that progress had been made with the 
bill, and asks for leave to sit again ; and the House orders that 
the Committee shall resume its work on a given day. While 
the bill is in Committee, amendments may be made in any 
part of it. The clauses are taken one by one, and each may 
be altered or omitted ; but new clauses cannot be added until 
the conclusion of the discussion on the existing clauses. 

When the bill has gone through Committee, the Chairman Report. 
reports to the House to that effect, and an order is made for the 
consideration of the bill as amended, on a day named. On such Be-oom- 
eonsideration further amendments may be made and new clauses 
added, and if these amendments are of a complicated character 
the bill may be re-committed, gone through again in Com- 
mittee, and again reported for the consideration of the House. 

After the bill as amended has been taken into consideration, Third 
a motion is made that the bill be read a third time, and the "^^^^^ ^^* 
third reading is usually foUowed by the question, * that this 
bill do pass.' On this being carried, an order is made that 
the clerk ' carry the bill to the Lords, and desire their con- 
currence,' and the bill is endorsed with the words soii bailie 

au seigneuTi. 

§ 3. Exceptional procedure. 

Before proceeding to follow the fate of a bill in the House 
of Lords, I will mention two points of some importance in 
which the procedure above described is not applicable. 

The first relates to the mode in which bills on certain sub- Billt relat- 
jects are required to be introduced. By standing orders (345, R^igion, 



228 THB PEOCESS OP LEGISLATION. [vil. 

346, 347) of the House no bill relating to Religion or the 

alteration of the laws relating to Religion, and no bill relating 

Trade^ to Trade or the alteration of the laws relating to Trade, may 

be brought in until the proposition has been considered in 

Money & Committee of the whole House. Nor will the House proceed 

muiitoriiri- ^P^^ *^y Petition, Motion, or Bill, for granting any money or 

n»te in fop releasing or compounding any sum of money owing to the 

Crown, except in a Committee of the whole House. 

This means that bills upon such subjects require to be 
founded upon Resolutions passed in Committee. 

Omitting from our present consideration the last topic 
referred to (Petitions, Motions, or Bills for granting money), 
as matter for future discussion, we must note that there are 
certain matters of legislation which begin with a proceeding 
preliminary to the proceedings just described : they are con- 
sidered in Committee as abstract propositions, and the Com- 
mittee reports upon them before a motion is made for leave 
niuBtra- to bring in a bill upon the subject. Thus in the case of the 
Church Disestablishment of the Irish Church in 1869, the proceedings 
Bill, 1869. began with a resolution in a Committee of the whole House 
moved by Mr. Gladstone, ' That the Chairman be directed to 
move the House that leave be given to bring in a Bill to put 
an end to the Establishment of the Irish Church, and to make 
provision in respect of the temporalities thereof, and in re- 
spect of the Royal College of Maynooth.' This resolution 
being carried was reported to the whole House, -which was 
at once moved for leave to bring in the Bill, the Bill was 
ordered to be brought in, was presented and read a first time 
on the same evening, 
standing The second matter is the creation in the year i88a of two 
mitteesfor standing Committees, one to deal with bills relating to law, 
^«s»ttd ti^e Courts of Justice, and legal procedure; the other with 
biUs relating to trade, shipping, and manufactures, if such 
bills should be committed to them by order of the House. 

This plan is a compromise between the occasional practice 
of committing bills to a select Committee of 15 members, and 



Sect. II. §4.] PEOCEDUBB IN THE LORDS. 827 

the general practice of considering them in Committee of the 
whole House. The Committee consists of not less than 60 
or more than 80 members, and its consideration and report 
of bills is to be equivalent to a consideration and report by 
a Committee of the whole House. It was hoped that this 
arrangement wonld diminish the length and irrelevance of 
discussions upon public bills, especially public bills which might 
contain provisions of a technical character. The Bankruptcy 
Act» 1883, was the work of such a Committee, but beyond this 
the success of the scheme has not been great. 

§ 4. A Bill in the Lords. 

After noting these possible variations in procedure, I will 

now resume the history of a bill at the point at which it is 

sent up to the House of Lords with a message that the 

Commons desire their concurrence. The biU is commonly Prooedore 

ordered at once to be presented and read a first time : it Lords. 

then remains on the table of the House of Lords, and if 

twelve days pass while the House is sitting, and no notice 

is g^ven of the second reading of the bill, it ceases to appear 

on the minutes and is dropped for the Session. But if the 

bill is taken up by a member of the House, the procedure is 

in no way different from the procedure in the House of 

Commons. The biU may be accepted by the Lords without 

Namendment, and then after the third reading it is not re-^ 

turned to the Commons, but a message is sent that the Lords 

have agreed to the said bill without any amendment. If, 

however, the Lords amend the bill they return it after the 

third reading with a message that they agree to the bill with 

amendments to which they desire the concurrence of the 

Commons, and endorsed with the words, A ceste bille avesque 

des amendemem Us seigneurs sont assewtus. 

The Commons may agree or disagree with the Lords amend-^ Dfaagree- 
mentB to their bill ; whether they agree or disagree the bill t^^ ^he 
10 xetomed with a message to that effect ; but if they agree the ^<^^>*^** 
bill is endorsed with the words A ces amendemens les communes 

Q 2 



228 THE FB0CES8 OF LEGISLATION. [VII. 

sofU aaentus. Should the disagreement eontinae and neither 
House be willing to accept the bill in the form which is satis- 
fiictory to the other, there are two modes by which the reasonB 
of difference maj be stated so as to bring about an agreement. 
One of these is a Conference, the other is a statement of 
reasons drawn up bj the Committee of the dissentient House 
and sent to the other with amended bill. 
A Confer^ A Conference is a formal meeting of members appointed by 
their respective Houses ; these members are called Managers. 
The Managers on behalf of the dissentient House are entrusted 
with the drafting of reasons for their disagreement, and with 
the task of reading and delivering them to the Managers of 
A free Con- the other House. No argument is used or comment made 
unless the conference be a free conference, in which case each 
set of Managers endeavours by persuasion to convince the others 
or in some way to effect an agreement between the Houses. 

The ceremony of a conference is extremely formal: the 
Lords sit; the Commons stand: the Commons are bare- 
headed ; the Lords, except when speaking, are only required 
to take off their hats as they approach and leave their seats. 
BeasoDB Practically conferences ore not resorted to at the present 
^^f "^time. No free conference has been held since 1836, and in 
oonferenoe. jg^j ^he Houses by resolutions agreed to receive reasons for 
disagreement or for insistance on amendments in the form of 
messages, unless a conference should be specially demanded 
by one or other House. 
lUuBtra- The way in which the Houses come to terms may be iUus- 
The Irish ^J^ted by some entries from the Journals of 188 1 respecting 

l^nd Act, the Irish Land Act. 
i88i. 

The Lords sent back the bill to the Commons with amend- 
ments to which the Commons could not agree. It was there- 
upon < Ordered That a Committee be appointed to draw up 
reasons to be assigned to the Lords for disagreeing to the 
amendments made by their Lordships to the bill ' : — and a 
committee was appointed consisting of Mr. Gladstone and 
others : ' and they are to withdraw immediately.' 



Sect. III. § I.] HONET BILLS, GENEBAL RULES AS TO. 229 

The Committee reported very shortly after, and it was 
' Ordered That a message be sent to the Lords to communi- 
cate the said reasons (with the Bill and amendments) : and 
that the Clerk do cany the same.' 

The Lords disagreed to the amendments of the Commons, 
and in like manner communicated their reasons for disagree- 
ment by message ; and after further communications of this 
nature, 'A message was sent to the House of Commons by 
Sir William Rose, Clerk of the Parliaments ' : 

* To acquaint them, '* That the Lords agree to the amend- 
ments made by the Commons to the further amendments 
made by the Lords, and to the consequential amendments 
made by the Commons to the said Bill, and do not insist 
upon their amendments to the said Bill to which the Com- 
mons have disagreed.' 



99 » 



The progress of a bill, which takes its origin in the House 
of Lords, differs firom that of one which is begun in the House 
of Commons only in some matters of form too slight and 
technical to be noticed here. 

But when a biU has passed both Houses it is ripe for the 
royal assent, which transmutes it firom a proposed law to an 
actual law. The form in which the royal assent is given 
may properly be deferred till we come to consider the functions 
of the Crown in Parliament. 

Section III. 

Money Bills. 

§ I* History and General Bulee. 

Legislation which has for its object the grant of public General 
money, or the imposition of burdens upon the taxpayer, pos- monly' 
some special features which require to be specially noted. ^^8* 



In the first place such legislation is under the entire control 
of the House of Commons. 

A bill relating to Supply must begin in the House of 



230 THE PROCESS OF LEGISLATION. [VII. 

General Commons. It is formulated there, and though it needs the 
concurrence of the Lords it cannot be amended by them on 
its way to receive the royal assent. 

In the second place such legislation only takes place on 
recommendation from the Crown : 

In the third place such legislation must commence in a 

Committee of the whole House. 

* 
History. ^^ neeA not trace this right further back than the reign 

of Richard II, when, as Dr. Stubbs tells us, it became the 

practice 'that all grants should be made by the Commons 

with the advice and assent of the Lords, in a documentary 

form which may be termed an act of the Parliament^.' 

The right seems on one occasion to have been disregarded, 

though not with any design to override the privileges of the 

Commons, by Henry IV, with the result that the Commons 

obtained after a remonstrance a formal recognition that the 

grant was theirs. Henry lY, in the year 1407, commenced 

the financial business of the Session by a discussion with the 

Lords as to the probable requirements of the service of the 

year, and the Commons were summoned to be told the result 

of the discussion. The Commons complained of the prejudice 

to their liberties which this action involved, and the king at 

once gave way, and while maintaining the right of the Lords 

to deliberate with the king on the needs of the kingdom, 

Commons decided that neither House should make any report to the kinfir 

clwm to be J r o 

necMBary on a grant made by the Commons and agreed to by the Lords, 

^rant, 0^ ^^ ^^7 negotiations concerning the same until both Houses 

were agreed, and that the report should then be made by the 

Speaker of the House of Commons, ' par bouche de Purparlour 

de la dite Commune.' 

then that Until the reign of Charles I the grant was not recited in 

the grant ^ ^ 

is theirs, the preamble of the act which legalised the subsidies as the 
grant of the Commons alone, but in the year 1625, in the act 
' for the graunt of two entire subsidies graunted by the Tern- 

^ Const, mst. iii 459. 



Sect. III. § I.] GENERAL RULES AS TO MONET BILLS. 231 

poralitie/ it is * your Commons assembled in your High Court 
of Parliament ' who grant the subsidies. 

So far the Commons claimed that the grant of supplies that Lords 
should be regarded as theirs ; later in the seventeenth century JJnend,** 
they went further and denied the right of the House of Lords 
to interfere by amendment or alteration. They resolved in 
1671, "That in all aids given to the king by the Commons, 
the rate or tax ought not to be altered \' and again in 1678, 
' That all aids and supplies, and aids to his Majesty in Parlia- 
ment are tie sole gift of the Commons : and all bills for the 
granting of any such aids and supplies ought to begin with the 
Commons : and that it is the undoubted and sole right of the 
Commons to direct limit and appoint in such bills the ends, 
purposes, considerations, conditions^ limitations, and qualifica- 
tions of such grants : which ought not to be changed or altered 
ig the House cf Lords^* 

Thus far the Lords would appear to have retained a power may not 
of rejection, and this, though rarely exercised, was not denied '^^ 
until the year i860. In that year the Commons, among other 
provisions for the supplies to be granted, made a readjustment 
of taxation, increasing the property-tax and stamp-duties and 
repealing the dnty on paper. The Lords assented to the 
biUs providing for the proposed increase of taxation, but when 
the bill for the repeal of the paper duties came before them 
they rejected it. 

The Commons met this action on the part of the Lords by Kesolations 
resolutions which set forth the privileges of the House in 
the matter of taxation, and which, while they did not deny 
that the Lords might have a power of rejecting money bills, 
intimated that the Commons had it always in their power 
80 to frame money bills as to make the right of rejection 
nugatory. 

The Resolutions were three in number. 

The first recites that the right of gpranting aids and supplies 
to the Crown is in the Commons alone. 

' 9 Com. J. a55. ' 9 Com. J. 509. 



I 



232 THE PROCESS OF LEGISLATION. [VII. 

The second, that although the Loids have exercised the 
power of rejecting bills of several descriptions relative to 
taxation, by negativing the whole, yet the exercise of that 
power by them has not been frequent^ and is jostly regarded 
by this House with peculiar jealousy, as affecting the right of 
the Commons to grant the supplies, and to provide the ways 
and means for the service of the year. 

The third, that to guard for the future against an undue 
exercise of that power by the Lords, and to secure to the 
Commons their rightful control over Taxation and Supply, 
this House has in its own hands the power to impose and 
remit taxes, and to frame bills of supply, that the right of 
the Commons as to the matter, manner, measure, or time, may 
be maintained inviolate. 

But though in the consideration of the constitutional rules 
which relate to money bills, the exclusive right of the Commons 
to deal with such biUs is the topic most frequently dwelt upon, 
the second rule which I propose to note can hardly be said to 
be less important. 

No petition for any sum relating to the public service, nor 
any motion for a grant or charge upon the public revenue, 
whether payable out of the Consolidated Fund, or out of 
moneys to be provided by Parliament, will be received, or pro- 
ceeded with unless recommended from the Crown ^. 
Money only rjr^^^ House therefore, while it can determine the amount of 

granted on 

reoommen- money which shall be granted and the sources from which that 
the Crown, money shall be drawn, has absolutely precluded itself from 
determining that any money shall be granted at all, unless 
the proposal for a grant emanates fit>m the Crovm. 

The responsible advisers of the Crown, the ministers of state, 
are alone capable of proposing that public money should be 
raised, or, if already raised, should be spent ; and the House 
would not entertain a motion by a private member for a specific 
outlay on any object which he might consider deserving of pubUe 

^ Standing Order, 406. 



Sect.III.§i.] GENERAL RULES AS TO MONET BILLS. 233 

support. The relations of Crown, Lords, and Commons in 
respect of money grants cannot be better stated than in the 
words of Sir Erskine May. 

* The Crown demands money, the Commons grant it, and Money ia 
the Lords assent to the grant ; but the Commons do not vote the Gom- 
money unless it be required by the Crown ; nor impose or J^^i^'J^ 
augment taxes, unless they be necessary for meeting the*^®^^^^« 
supplies which they have voted or are about to vote, and for 
supplying general deficiencies in the revenue. The Crown has 
no concern in the nature or distribution of the taxes : but ike 
foundaiion of all parliainetUary taxation is its necessity for the 
puilie service as declared by tie Crown through its constitutional 
advisers \* 

It is possible for any member of the House of Commons to 
move a resolution to the efiect that public money might profit- 
ably be expended upon purposes specified in the resolution ; 
and if the House agree to the motion it thereby commits itself 
to a general approval of such an outlay. But it would not be 
in accordance with the rules of the House for a private member 
to move that a specific sum be granted for a specific purpose ; 
such a motion could only proceed from a minister of the Crown. 
For it cannot be too strongly impressed upon the student of 
constitutional law, that all the money spent upon public service 
18 spent by the Crown ; that all the money gpranted for the 
public service is granted by the Commons, and that the 
Commons have imposed upon themselves a rule that they wUl 
not grant a penny unless it is asked for by a minister repre- 
senting the Crown for a purpose specified in the terms of his 
i^eqiiest. 

Such a rule is the great safeguard of the tax-payer against 
the casual benevolence of a House wrought upon by the 
eloquence of a private member ; against a scramble for public 
money among tmscrupulous politicians bidding against one 
another for the favour of a democracy. But the rule is not 
law. Like all other resolutions or standing orders of either 

^ May, Parliamentary Praotioe, 604. 



234 THE PROCESS OF LEGISLATION. [VII. 

Honse it is a self-imposed role made by a public body for the 
guidance of its procedure. It could be altered almost as easily 
as a College by-law, quite as easily as a rule of the Maiy- 
lebone Cricket Club. Yet some of the most valuable parts of 
our constitution are to be found either in practices which 
depend upon simple usage, or upon rules as insecure as the 
standing order which I have just described. 

The last characteristic which I propose to note respecting 
money bills is, that by a Standing Order of the House agreed 
to on the 29th March, 1707, 'the House will not proceed 
upon any petition, motion, or bill, for granting any money, 
or for releasing or compounding any sum of money owing to 
the Crown, but in a Committee of the whole House.' And 
this brings me to the actual process by which the House 
grants supplies to the Crown. 

§ a. Committee cf Supply. 

The sources of royal revenue and the checks on departmental 
expenditure are not what I am here concerned with. These 
topics will form a separate chapter of that part of my work 
which deals with the Executive. What we must here con- 
sider is how the House of Commons grants supplies to the 
Crown, how it indicates the sources whence those supplies are 
to be drawn, how it appropriates the supplies granted to the 
services for which the grant is made. 
Committee As soon as the House of Commons has agreed upon an 
o app y- address in reply to the Speech bom the Throne, it passes two 
resolutions — one that on a certain day it will resolve itself 
into Committee of Supply ; another that on a certain day it 
will resolve itself into Committee of Ways and Means. 

Estimates of the items of expense of different departments 
are presented to the House by the ministers responsible for 
the departments respectively, and on the day fixed the House 
goes into Committee of Supply or postpones the sitting of 
that Committee until a later day. 

Until the year 1882 it was the rule that before going into 



Sect. Til. § a.] COMMITTEE OP. SUPPLY. 235 

Committee of Supply, and on the motion being made and 

question put that ' Mr. Speaker do now leave the Chair/ it 

was open to any member to move any amendment, however GrieyanoeB 

irrelevant, the practice being illustrative of the maxim that supply. 

redress of grievances precedes the grant of supplies. Thus, on 

a night intended to be devoted to supply, the motion that 

' Mr. Speaker do now leave the Chair ' might be met by an 

amendment in the form of a motion for the establishment of 

a harbour on the coast of Donegal, or a lighthouse on an 

island in the Red Sea. 

Among the rules of procedure settled in 1882 was one 
which provided that when the first order of the day on 
Mondays and Thursdays is that the House go into Committee 
of Supply, the Speaker should leave the chair without any 
question being put, and thus no amendment can on such 
occasions be moved. 

When the House has gone into Committee, the estimates Prooeed- 
put down for discussion are considered. The minister respon- cl^zdttee. 
sible for them may make, as in the case of the army and the 
navy estimates, a general statement on the estimates as a whole, 
afler which the items are separately discussed and voted upon. 

At the conclusion of each sitting the Committee resolve ' to 
report progress and ask leave to sit again.' 

The Speaker then resumes the chair, and the Chairinan of 
Committees reports : — (i) That the Committee has come to and on 
several resolutions. The House orders the reports to be"^^^^"^^* 
received on a day named. (2) That the Committee ask leave 
to sit again. The House resolves that it will on a day named 
resolve itself again into Committee of Supply. 

When the time comes for receiving the report the various 
items of supply agreed to be furnished are reported to the 
House, and it resolves that each item shall be granted to Her 
Majesty for the purpose specified. 

At the end of the session all the resolutions of this nature 
paaaed during the Session are embodied in the Appropriation 
Act, to which we shall come presently. 



236 THE PE0CB8S OF LEGISLATION, [VII. 



§ 3. Committee of Ways and Means. 

The Committee of Supply determines what money shall be 
granted to the Crown and for what purposes ; the Committee 
of Ways and Means determines how the money required shall 
be raised, or whence it shall be drawn. In order to under- 
stand the working of this Committee there are some facts 
about the revenue which it is necessaiy to bear in mind. 
Sometax. The greater part of the revenue of the country is not 
ammal, granted annually by the Commons, but is settled and legal- 
some per- jg^^ ^^y. g^atutes which do not require an annual renewal. 
The great bulk of taxation goes on from year to year, unless 
Parliament should otherwise determine, and its proceeds are 
paid over to a fund called the Consolidated Fund. 
Committee All the supplies granted must therefore come from one of 

determines . t* 1 in«*i» 

the sooroe two souTces : from the proceeds of annual taxation, or from 
^°^^**the proceeds of new taxation. It is for the Committee of 
plieB gran- Ways and Means to frame resolutions upon these questions and 
be drawn, report them to the House. The Committee receives from the 
Chancellor of the Exchequer a financial statement for the 
coming year. He balances the expenditure of the year against 
the proceeds of the permanent taxes paid into the Consolidated 
Funipltis such additional taxation as he may think it neces- 
sary to recommend. The duties of the Committee of Ways 
and Means are therefore twofold — ^to meet the needs of Supply 
by grants from the Consolidated Fund ; and to adjust income 
to expenditure by manipulating the taxation of the year. 
The Committee reports its resolutions at the conclusion of 
each sitting ; as in the case of the Committee of Supply, the 
resolutions of the Committee are considered upon a subsequent 
day and adopted or rejected by the House; and unless the 
work of the Committee is finished, an order is made that on a 
day named the House will again resolve itself into Committee 
of Ways and Means. 

So much of the work of the Committee of Ways and Means 
as proposes new taxation passes, when adopted by the Honse, 



Sect.ni.§4] APPEOPEIATION BILL. 237 

into bills for the imposition of such taxation. So mnch of the 
work of the Committee as proposes grants from the Consoli- 
dated Fnnd passes, when adopted by the House, into an 
Appropriation Bill. 

§ 4. Appropriation Bill. 

In speaking of the Appropriation Bill I do not wish to No public 
anticipate what I may have to say hereafter as to the Trea- ^^ont^ 
SDiy, Exchequer, and Audit Departments, and the various *?^^*y 
machinery by which it is secured that the intentions of Far- ment ; 
liament as to the disposition of public money will be carried 
out. It is enough to say that none of the public money, 
that is, of the money constituting the revenue of the Crown, 
is paid except by Parliamentary authority, and that about 
two-thirds of the revenue of each year is appropriated to 
specific purposes in an Appropriation Act passed in that year. 

For just as some taxation is annual while some does not some pay- 
require to be annually imposed, so some payments are annual annual 
g^rants, while some do not require to be annually sanctioned. *°^^"^7' 
To give illustrations : payments of the interest of the Na- 
tional Debt, and of the pension to the late Speaker are alike 
required, by the Statutes which authorise their payment, to some do 
be warranted and directed to be made by the Commissioners 
of the Treasury, and do not need to reappear annually in the 
estimates, and run the gauntlet of the Committee of Supply. 

But the sums voted to meet the army, navy, and civil 
service estimates cannot be legally paid until they are 
embodied in the Appropriation Act; and the House of 
Commons, in order to get the supplies of the whole year 
into one bill, reserves the Appropriation Act until the close 
of the session. 

Nevertheless, since money is often wanted for the public Prelimi- 
service some time before the Appropriation Act is passed, propria- 
and inconvenience may be caused by delay in paying money ^^™' 
to meet supplies which have been already granted by the 
Commons, it is customary to legalise the issue of certain 



238 THE PEOCESS OF LEGISLATION, [vil. 

sums oat of the Consolidated Fund, and to do this after 

supply has been agreed to in the Commons to the amount 

for which the issue is allowed, but some months before the 

Appropriation Act is passed. This may be done more than 

once during the session ; and, at the end of it, these preliminary 

and less specific Appropriation Acts are embodied in the 

embodied general Act which is passed at the close of the session, in 

Appropria- which the items are all set out for which the earlier payments 
tion Act. ^^yg legalised. 

When the Appropriation Bill has received the assent of 
the Lords it is returned to the Commons, and when the 
House is summoned for prorogation it is brought by the 
Speaker to the bar of the House of Lords, and handed by 
him to the Clerk of Parliaments to receive ihe assent of 
the Crown. 

A bill for granting money to the Crown, whether the grant 
take the form of the imposition of new taxes, or of an appro- 
priation of money out of the consolidated fund, is expressed 
differently to other bills in its enacting clause. It may be 
well to compare the forms. 

Act for granting duties of Customs and Inland Revenue, 

Most Obacious Soyeseiqn, 

We, Your Majesty's most dutiful and loyal subjects, the 
Commons of the United Kingdom of Great Britain and Lreland, in 
Parliament assembled, towards raising the necessary suppUes to 
defray Your Majesty's public expenses, and making an addition to 
the public revenue, have freely and voluntarily resolved to give and 
grant unto Your Majesty the several duties hereinafter mentioned, 
and do therefore most humbly beseech Your Majesty that it may 
be enacted; and be it enacted by the Queen's most Excellent 
Majesty, by and with the advice and consent of the Lords Spiritual 
and Temporal, and Commons, in this present Parliament assembled, 
and by the authority of the same, as follows. 

Appropriation Act, 

Host OnAcions Sovebeiqn, 

We, Your Migesty's most dutiful and loyal subjects, the 
Commons of the United Kingdom of Great Britain and Lreland in 



.J 



Sect. IV. § I.] PEIVATB BILL LEGISLATION. 239 

Parliament assembled, towards making good the supply which we 
have cheerfully granted to Your Majesty in this session of Parlia-* 
ment, have resolved to grant unto Your Majesty the sum herein- 
after mentioned; and do therefore most humbly beseech Your 
Majesty that it may be enacted ; and be it enacted by the Queen's 
most excellent Majesty, by and with the advice and consent of the 
Lords Spiritual and Temporal, and Commons, in this present Par- 
liament assembled, and by the authority of the same, as follows. 

SEcnoN rV. 

PRIVATE BILL LEGISLATION. 

§ I. Historical outline. 

The passing of a private bill is, at the present time, a A private 
proceeding partly legifilatiye, partly judicial. Such a bill partly ^ 
commencee by petition; it is furthered by persons outside ^"*^^. 

•^ * •' * proceeding. 

the House, the promoters, who have some practical interest 
in the passing of the bill : it relates to matters of individual, 
local, or corporate interest. Although it passes through the 
forms of a public bill, and although these forms are a vital 
part of its progress, yet the most interesting and important 
stage of that progress is its passage through Committee, 
which is for the purpose of private bill legisktion a select 
Committee of one or other House. This Committee acts 
as a judicial tribunal before whom counsel appear on behalf 
of the promoters or the opponents of the bill in question. 

The history of private bill legislation might lead us to a Originally 
great deal of very interesting inquiry concerning Parliament>ary of M^indi^ 
antiquities \ but with these it is only possible to deal in the '^dual, 
most general way. The petition with which the Bill com- 
mences was the one method in the middle ages by which 
rights might be acquired which the Common Law Courts 
could not confer or assure. If a man had to complain of 
ineqaitable dealings in the matter of property or contracti 

' The learning of thii subject is made extremely interesting in Mr. Clifford's 
work on Private BiU Legislation, where the historical side of the question ia 
amply treated. 



240 THE PROCESS OF LEGISLATION. [vn* 

he petitioned the Crown or the Crown in Chancery. If he 
had to complain of violence or oppression, snch as the ordinary 
courts conld not or dared not redress, he petitioned the Crown 
in Council. If he was not in seaich of equity or of law, but 
wanted to get the law altered in his &your, he petitioned 
Parliament, sometimes addressing himself to King, Lords, and 
Commons, sometimes to Lords and Commons, sometimes to 
the Commons alone, sometimes to the king or to the king 
in Council. 
Addressed The petitions from which private bill legislation takes its 
mentT ^ origin are those which it became the practice in the reign 
of Henry IV to address to Parliament, or to the Lords or 
See pott the Commons ^. Such petitions were not handed, as in earlier 
^' ^^' procedure, to the Receivers and Triers of Petitions nominated 
(as they are still nominated) at the commencement of each 
Cease in Parliament. They went to the House to which they were 
whoUy addressed, generally the Commons, and afber consideration 
personal, fj^j^j^^ y^^^ passed on with the endorsement * soH baill/ awe 
seigneurs.* Such petitions were at first of a purely personal 
character, attainders or the reversal of attainders, rewards 
given or punishments inflicted in individual cases. Later 
comes local legislation, the regulation of fisheries, of the 
navigation of rivers, of harbours, the prevention of floods 
and the inclosure of commons. Last comes l^slation on 
behalf of bodies incorporated for commercial purposes, re- 
quiring, in furtherance of those purposes, some interference 
with private rights. Such are the acts passed to confer 
powers on railway, gas and tramway companies^ of which 
every session aflbrds numerous examples. 
'Private* The first of these three groups is at the present time 
^* Acts, distinguished fix)m the rest by the title of * private Act,' and 
relates to naturalisation, to dealings with trust estates, in rare 
cases to divorce. The last two are included under the general 
term * local Acts,' and cover almost the whole ground of privat-e 
bill legislation. 

* Stnbbe, Const. Hist iiL 460, and n. 4. 



Sect.IV.§a.] PBIVATE BILL LEGISLATION. 241 

§ 2. Procedure in respect of Private bills. 

It would be impofisiUe without entering into technicalities Tedmi- 
and detaik unsoited to the eompa^iB and character of this prooednre. 
book, to attempt to do more than give a very general outline 
of the process of private bill legislation. Enough may be 
said, however, to show the nature of these half legislative 
half judicial proceedings, and the care with which the Houses 
guard themselves against legislating in the interest of pri-* 
vate persons or of coirporations to the detriment of individual 
interests, unless they are satisfied that public purposes are 
to be attained for which individual interests may fsdrly be 
set aside with compensation finr loss sustained. 

By the airt of December, in the year before the bill is Petition, 
to be hrou^t forward, a petition for the bill must be de« 
podted in the Private Bill Office of the House of Commons, 
together with a copy of the biU and certain explanatory 
dootunents required by th^ standing orders of the House; 

Here too are tent memorials, from parties interested in Memorial 
piOTentang the passing of the bill, to the effect that ihe nento!^^^ 
standing <»deTS of the House have not been complied with 
in the presentation of ipetition, biU, and documents. 

On the i8tib <^ January the petitions and memorials are rnqmiyaB 
dealt witii by two Ikaminers, one appointed by the House ^^^th 
of LoTde, the other by the Speaker. If no one appears in Sj^^j^ 
support of a petition, it is struck out, but in the ordinary 
cawcse the agent concerned in promoting the bill, offetis proof 
that the Standing Orders have been satisfied ; those who have 
preeented memorials against the bill are heard, not on the 
merits of the biU, but on the preliminary question of com- 
pljatice with the Standing Orders ; witnesses are called ; and 
at the cotD cl nfiiion of the hearing the petition is endorsed by 
the euuniJiar And returned to the Private Bill Office. If the 
endarBenient ie to the eS&at that the Standing Orders have 
been eomplied with, no more is said ; but if the examiner 
deeidea adFer^elj^ to the petition on this point, he makes a 

E 



242 THE PROCESS OF LEGISLATION. [vil. 

report to the House of Commons, and sends a certificate to 

the House of Lords to indicate the non-compliance. 

Want of But the preliminaries are not yet over, nor ia the bill lost 

maybe because the examiner has found that the Standing Orders 

by^^^ have not been complied with. The petition is in any case 

presented to the House of Commons by a member three days 

after indorsement, if reported ag^ainst by the examiner it 

is referred to the Standing Orders Committee, consisting 

of eleven members of the House, who conjsider whether the 

Standing Orders may be dispensed with, and even if the 

Committee report adversely to the bill, their report may be 

overruled by the House. 

So £eu* the rules of the House are careful to provide that 

all persons interested in the proposed bill may have had 

full notice by advertisement, and full information by access 

to documents of the intention and nature of the proposed 

bill 

First ^0 ^^ ^ ^^^ & ^t time, and is then, upon notice given 

reading, ^f ^j^^ second reading, referred back to the Private Bill Office 

for examination, lest the form in which it is drawn should 

violate the Standing Orders, or depart from the terms in 

which leave was given for its introduction. 

Second It is then read a second time, and here if at all the general 

'***^^' principle of the bill is discussed in the House : but the effect 

of a second reading is not, as in the case of a public biU, to 

affirm the principle of the bill, it merely indicates that the 

bill contains no obviously objectionable features. 

Reference When read a second time, the bill is committed. If it 

to Com- 

mlttee. is a railway or canal bill, it goes to a standing committee 
for those matters : if it is not such a bill it goes to the com- 
mittee of selection which arranges the bills and'assigns them 
to committees consisting of four members and a referee. 

Renewed But further precautions are taken, before the Committee 

w'^tolSm. ^®^ ^^^ ^^ ^^ "^^ Chairman of Ways and Means for 
the Commons, and the Chairman of Committees for the 
House of Lords examine all bills before they are passed into 



Seci.iy.§3.] PEIVATB BILL LEGISLATION. 243 

Committee, and the Chairman of Ways and Means has the 
assistance of the Counsel to the Speaker. Thej may report 
any special circmnstances in connection with the bill either 
to the House or to the Chairman of the Committee, or may 
recommend that a bill to which no opposition has been offered 
should be treated as opposed. They may introduce amend- 
ments, within the scope of the bill, and amendments may 
be introduced by public departments interested in the matter 
of the bill, as ihe Board of Trade in a Railway BIQ. 

The Committee stage is the really interesting and exciting The biU 
part of the career of a private biU, for there the judicial aspect mittee. 
of the House in its dealings with these measures is brought 
into strong light : and it appears in a judicial character not 
as in the preliminary stages of the bill to ensure compliance 
with forms of procedure, but to hear a keen and animated 
contest upon the merits of the bill conducted by counsel 
for the promoters and opponents, and supported by witnesses 
examined upon oath. 

But the opponents of a bill have to go through various Require- 
formalities before they are permitted to appear in that capacity. ^^^ ^ 
The opponent of a bill must first deposit a petition at the '^«»^' "f 

*-^ ^ ^ ^ r x- ^ opponents. 

Private Bill Office within ten days after the first reading. 
He must then be prepared to meet objections raised by the 
promoters of the bill to his right to be heard, and such 
olgections are raised and argued before a court of referees 
to determine the Iocm standi of petitioners against a bill. 
Qaestions of locus standi are argued by counsel before this court, 
and the right of an opponent to be heard in Committee against 
the whole or against any clauses of the Bill is there settled. 

This is the process by which the right of opposing a bill Judicial 
or any part of a bill is ascertained and limited ; when this ^ pr^. 
is settled the Committee sits to hear the parties ; counsel ?^^^ 
then appear for the promoters of the bill, and for the petitioners mittee. 
against it ; witnesses are examined, and the whole proceeding 
is of a judicial character, though conducted before a tribunal 
not perhaps very familiar with judicial functions. 

B 2 



244 THE PBOGESS OF LEGISLATIOK. 

If the preamble of the ISJl is proved to the aatisfiuition of 
the Committee, the clauBee are taken in order ; if the preamble 
is rejected the bill Mb to the ground. When the Committee 
has been throagh the bill it is reported to the House, and 
its subsequent stages are similar to those of a publio bill 
eacoept in the form to be described presently in whicdi it 
receives the Scyal asseilt. 

Much might be added afi to the process of classification 
of private biUs, and the details of procedure in respect of 
them. But since these are not matters of constitutional 
importance, and can easily be found in books of Parliamentary 
practice, I do not propose to cany the sulject further. 

Bules As the ordinary course of Legislation depends almost entirely 

pro^^ upon the rules which each House adopts for the regulation of 
Legiaia- j^ procedure, it is well to note that these &11 into three 

classes. 

There are itanding orders^ resolutions as to procedure, which 

each House intends to be permanent, and these, though they 

may at any time be repealed or suspended by resolution, endure 

from one Parliament to another in de&ult of such repeal or 

suspension. 
There are sessional orders, rules which last only for the 

session^ and require to be renewed (if they are to remain in 

force) at the commencement of each session. 

There are indeterminate orders and resolutions. These would 

expire with the prorogation of Parliament unless they shoold 

be declaratory of some general custom which might pass into 

the unwritten or common law of Parliament. 



CHAPTER VIII. 

THE CROWN m PAELIAMENT. 

I HAVE now traced the progress of a bill up to the point at 
which it has received the assent of both the Houses, of the 
Lords Spiritual and Temporal and the Comnxons in Parlia- 
ment assembled. In order that it may become law it still 
requires the Boyal qssent ; it requires to be ei^acted by the 
Queen's most excellent Majesty. 

We come, therefore, to the functions of the Crown in Topics to 
Parliament, and in dealing with them I do not propose to con- ^^ 
fine myself to the action of the Crown in legislation, but to 
consider in other matters the relations of the Crown to Parlia- 
ment ; and these fall under three heads. 

First, we may regard the Crown as constituting Parliament 
and bringing it to an end. 

Secondly, we may regard the Crown as communicating its 
wishes or opinions or sending information to Parliament while 
Parliament is sitting. 

Lastly, we may regard the Crown as a party to legislation, 
as giving validity to laws proposed by Parliament, as turning 
a bill into an act. 

§ I . TAe Crovm as canstittUing Parliament. 

It is the Crown which constitutes Parliament ; the Housed 
meet by Boyal invitation ; they are opened by the Boyal per- 



246 



THE CBOWN IN PAELIAMENT. 



[vin. 



Secaritiet 
for sum- 
mons and 
BOBsion of 
Parlia- 
ment. 



Annoal 
Parlia- 
ments. 



Triennial 
Session. 



mission ; they continue in existence and working daring the 
Boyal pleasure. 

I have sufficiently described in an earlier chapter the pro- 
cess of summoning, opening, proroguing, and dissolving 
Parliament. It is, therefore, enough to note here what obli- 
gations rest upon the Crown to summon a Parliament, and, 
while it is in existence, to allow it to sit. 

The Statutes bearing upon this subject are three ; and when 
these results are summed up it is difficult not to feel surprised 
at the scanty legal security of a direct character which exists 
for the summons and sitting of Parliament. 

The first is 4 Ed. Ill, ^c. 14, which enacts that ' a Parlia- 
ment shall be holden every year once, and more if need be'; 
this was re-enacted in the thiriy-sixth year of the same reign, 
but the words ' if need be ' seem to have been treated as 
applying to the whole clause, and Parliaments were often 
intermitted for years together. 

The second is 16 Car. II, c. i. The Long Parliament had 
passed an act providing that if the king neglected to call a 
Parliament for three years, the peers might issue out writs, 
and that if the peers neglected to do so, the constituencies 
might elect a House of Commons for themselves. The loyalty 
of Parliament in 1664 repealed this statute as being 'in 
derogation of His Majesty's just rights and prerogative 
inherent to the imperial crown of this realm.' And indeed 
it proceeded on the assumption, reasonable in itself, though 
unhistorical, that the Lords and Commons assembled, not 
because the king wanted their advice, but because they de- 
sired, and because the constituents of the members of the 
Commons desired, that affidrs of State should be discussed and 
the action of ministers considered by persons who, though not 
responsible, were interested in the conduct of affairs. 

16 Car. II, c. I, repeals this act, and Airther provides that 
' the sitting and holding of Parliament shall not be intermitted 
or discontinued above three years at the most.' 

The third is 6 Will. & Mary, c. %, which provides, * That 



— 1 



§ I.] THE CEOWN AS CONSTITUTING PAELIAMENT. 247 

within three years at the farthest from and after the dissolu- Triennial 
tion of the present Parliament, and so from time to time ever «^^^°^«- 
hereafter, within three years at the Jbrthest from and after the 
determination of every other Parliament, legal writs under 
the great seal shall be issaed by directions of your Majesties, 
your heirs and successors, for calling assembling and holding 
another Parliament/ 

It would seem then that, apart from the general expression Statute 
of the Act of Edward III the only statutory security which we secnre 
possess for the frequent summons and sitting of Parliament, ^^^^ 
is the act of Charles II, providing that Parliament shall sit 
at least once in every three years, and the act of William and 
Mary to the effect that we shall not be more than three years 
without a Parliament. 

Nor do the acts say what is to happen if the Crown &ils 
to carry them into effect. The Long Parliament devised 
machinery to meet such a case, but subsequent Parliaments 
appear to have thought it disloyal to provide for the con- 
tingency that the Crown might not fulfil the Law. 

It is sometimes said that the necessities of supply compel nor does 
the Crown to an annual summons of Parliament. But, as I .^^^f °' 
had occasion to say in speaking of the Committee of Ways 
and Means, so much of our taxation is now permanent that 
government might fairly be carried on for a while without 
those annual taxes which every session increases or diminishes. 

It is not the need of supply, but of the appropriation of but of ap- 
supply and of the Army Act, which makes it legally necessary ©f BupplyT 
for Parliament to sit every year. If Parliament did not 
appropriate the supplies of the year to specific purposes, the 
money which comes in on account of the various items of 
taxation could not legally be paid out to meet the services of 
the year, except in the case of such charges upon the revenue 
as are permanently authorised by statute. The interest upon 
the national debt would be paid, but not the wages of sailors 
serving on board of Her Majesty's ships, nor the regimental 
pay of Her Majesty's land forces. The annuity of the late 



Bt. 2. C. 3. 



248 THE CEOWN IN FAKLIAMBNT. [VTII. 

Speaker would be paid, bat not the salarieB of the law 
oflBicers of the Crown, and of the Charity or Land CominiB- 
flioners, or the bill for fomiture in the public depaTtments 
of Great Britain. Money would come in sufficient to meet 
some, though not all of these charges, but the authority to 
pay two-thirds of the nation's liabilities would be wanting, 
and there would be no one in the kingdom who could make 
the payments without committing a breach of duty. 

and of the And the absence of any authority to pay the officers and 
men in Her Mfyesty's army would not be the only difficulty 
which the army would occasion if the sitting of Parliament 
should be intermitted for a year. The existence of a standing 

iwm. & army in time of peace is contrary to law. It is legalised each 
year for a year by the Army Act. Again, the punishments and 
procedure for the maintenance of discipline in a large body of 
troops are contrary to the common law of the land, as declared 
by several statutes. They ioo are legalised by the Army Act 
which brings into force each year, for a year, a code of military 
law. These are the only practical securities for the summons of 
Parliament with tolerable frequency, but they ndther impose 
any penalty nor supply any alternative machinery in case the 
Crown should make defeult in fulfilling the Statutory require- 
ments as to the issue of writs of summons. 



§ 2. Tie CrwDn in communication wUi Parliament. 

The Crown, if it desires to communicate with either House 
of Parliament, can only do so by speech from the throne at 
the opening and close of session or by message in one form or 
another. For though the Queen is entitled to be present on 
her throne during the debates in the House of I/ords, she 
fr^rL ^^}^ ^^* **^® P»^ ^ tl^«m. The speech from the throne 
Throne, which opens and concludes the business of Parliament was 
formerly an address to both Houses delivered in pereon and 
capable of being charged with exhortation or rebuke adapted 
to the prospects or the history of the session. These speeches 



}a.] COMMUNICATION WITH PAELIIMBNT. 249 

now oontain formal statements as to the foreign relations of 
the oonntry, oommnnioations of topics of legislation to be 
proposed by ministers, remarks on the condition of trade, 
on the weather in connection with the harvest, and, at the 
dose of the session, expressions of thanks for the supplies 
granted and of congratnlationB on the additions to the statute- 
book which the labours of the session have produced. 

The presence of the king at the sittings of tiie House of Bo jal 
Lords in the mediaeval Parliaments appears to huve be^ very ^B^e^ 
common^. Hie decision of Henry IV, relating to Hhe right o^^^»- 
of Mie Conmions to the exclusive dealing with supply, is called 
the * Indemniiy of the Lords and Commons V and in so &r as Ante, 
it contains a permission to the Lords to transact business in ^' ^^^' 
the absence of the Crown, it soggests that the House of Lords 
in the reign of Henry IV still retained so much of the 
character of the King's Council as to make the presence of 
the king necessary to the due transaction of its business. 

But, however this may be, the practice had become so 

nnusoal by the reign of Charles II, that the Lords were 

uncertain what business of the House could be transacted in 

his presence. On one occasion Charles came unexpectedly into 

the House when it was sitting in Committee, and thereupon 

the jsitting of the House was restmied. But the king said 

* that he is come to renew a custom of his predecessors long 

discontinued, to be present at debates but not to interrupt the 

fireedoro thereof: and therefore desired the Lords to sit down, 

and ]pztri on their hats, and proceed with their business.' 

Whereixpon 'the Lords again taking their places and putting 

on iheir' hats the House was again adjourned into a Committee 

during pleasure.' 

Charles 11 was a frequent attendant at debates, being 

present ait as many as forty-three out of eighty-nine in the 

BeeBHm of 167^-3, and upon one occasion in the session of 

^^•JX \ife Tcebuked the Lords for their disorderly conduct, 

^emiin^ them ^^^^ ^ prophane such a presence as this i a Lords j. 

» StubbB, CoMt. Hirt. iU. 480. " Bot. Pari, iii 611. 



250 THE CEOWN IN PAELIAMENT. [Vin, 

with the like disorder, but keep their places and proceed with 
their businesses according to their orders prescribed in the 
House/ 

From the death of Queen Anne the presence of king or 
queen during debates in Parliament has been discontinued. 
The ceremonies of opening, prorogation or dissolution of Par- 
liament, and of giving the royal assent to bills are the only 
occasions on which the Queen is present in t];ie House of 
In the Lords. Her presence during a debate in the House of 
Commons would be something very different from a revival of 
a practice long disused. Charles I is the only sovereign ^ who 
has thus ventured to violate the rights of the Commons to 
fireedom and secresy of debate. The Journals of the House 
for the 4th of Januaiy, 164a, j contain the only precedent for 
a situation incompatible alike with the dignity of the Crown, 
and the privileges of the Commons. 

The entry of the preceding business is interrupted, and the 
report runs : — 

His Majesty came into the House and took Mr. Speaker's chair. 

' Gentlemen, 
' I am sorry to have this occasion to come unto you.' .... 

The journal breaks off abruptly, and its silence is significant. 
Royal The Crown therefore, except on the occasions which I have 

mentioned, must communicate with the Houses by messages, 
under sign- and these may be either formal, under the sign-manual 
delivered to the Lord Chancellor in the one House, and to 
the Speaker in the other, and received by members un- 
reported covered : or of a less formal character, but reported verbatim 
by a minister or officer of the household to the House of which 
infornuJ. he is a member : or lastly, it is permissible for a minister to 
communicate to the House in the course of debate a statement 
from the Crown, but this only ' if it relates to matters of fact, 
and is not made to influence the judgment of the House, and 
then only with the indulgence of the House '.' 

^ Gardiner, Histoiy of England, z. 139. 
' 2a8 Hansard, 2037. 



§2.] COMMUNICATION WITH PARLIAMENT. 261 

Apart from these modes of address, the Crown has no 
means of commnnicating with Parliament. Nor are these 
nsed except npon formal occasions. The Qaeen can direct the 
attention of the Honses to certain matters in her opening 
speech. She can while they are sitting commonicate a 
request for sapplj, or place at the disposal of the country 
some matters of royal interest or prerogative ; she can, at the 
close of the session, if she choose, comment upon the conduct 
of business and the progress of legislation. All measures Use of 
introduced or advocated by the Queen's ministers are as- nj^^in 
sumed to have the royal approval, but to introduce into debate ^®^*®' 
in either House any allusion to the personal wishes of the 
Queen, or to use Her Majesty's name in such a manner as to 
influence the judgment of members is contrary to the rules 
of the House. 

Thus during the session of 1876, a member of the House of 
Commons made at a public meeting a statement to the effect 
that a measure then before the House had been brought forward 
in deference to the personal wishes of the Queen. Mr. Disraeli, 
who was then Prime Minister, desired to contradict this 
statement on behalf of the Queen and with her authority. 
He said, ' I can only speak with the indulgence of the House. 
I have the authority of Her Majesty to make a statement on 
her part, but at the same time, as I have felt it my duty to 
place before Her Majesty the fact that it is not in accordance 
with the rules of the House that the name of the Sovereign 
can be introduced into debate without the permission of the 
House — ^it therefore rests with the House whether I shall go 
on. I£ the House desires it I shall do so.' 

Mr. Speaker thereupon said, ' As the House is aware, one 
of the rules of the House is this — that the introduction of the 
Queen's name into debate, with a view to influence the 
decision of the House, would certainly be out of order. At 
the same time, if the statement of the right honourable 
gentleman relates to matters of &ct, and is not made to 
influence the judgment of the House, I am not prepared to 



262 TELE OEOWN IN PABLIAMBNT. [VIIT. 

say that, with the indalgenoe of the House, he may not 
introduce Her M^gesty's name into the statemente ^/ 



§ 3. TAe Crown as a party to legislation, 
L^dAtion ^jf^ hnyg g^l ^ consider the action of the Crown as a 



the Grown, party to leg^ktion, and looking back at the hirtoiry of 

matter, and noting, as we have had to do, the large shaie of 
legislative power which the Crown onee poteeesed, we are apt 
to forget that laws have been passed to which no royal asseat 
was given ; we are apt to forget the episode of the Ci»nmon- 
wealth ; the restoration of Charles II ; the resolution of the 
Lords and Commons that the crown should be offered, on the 
abdieation of James II, to William and Mary ; the strange 
conclusion at which Lord Chancellor Thurlow arrived during' 
the insaniiy of Gciorge III, in 1788, that he could put the 
great seal to a Eoyal Commission empowering him to give 
the royal assent to Acts of FariiaaDaent. 

We may leave ont of consideration the makeshifts to whioh 
oonstitutional lawyers may be reduced when the throne 10 
vacant or its occupant insane. All that can be done under 
such circumstances is to supply, as soon as may be, the deft* 
eienoy in the constitution. Apart from catastrophes which 
need to be dealt with aa may best suit the cijecumstances of 
each case, we may safely join with the second Parliament of 
Charles II in holding that there is no truth in the < opinion 
that both Houses of Parliament, or either <A them, have a 
legislative power without the king,' an opinion the expression 
of which rendered its holder liable, by the same statute, to the 
penalties of a pramnnvre. 

The Boyal When a bill has passed through all the necessary stages 
which I have described above, it is ripe to receive the royal 
assent ; and this assent is given by the Queen in person or by 
commission. 

in person, If the Qucen should come to Parliament in personi every 

\^2% Hansard, ao3f. 



1 3.] THE CEOWN AS A PABTT TO LEGISLATION. 253 

bill wMdi id ready for the loyal assent woold necessarily be 
jMreeented to her for assent or rejeiction. If the royal assent is by com- 
giYQU by commission it can only be given to such bills as are ^^^^'^^ 
inchided in a sdiednle annexed to the commission. 

It seems to have been regarded as donbtfbl at one time 
whether the Crown by assenting to a single bill did not 
thereby terminate the. session of Parliament S and as late as 
1670 a clause was inserted into an act providing that ' His 
Majesty's royal assent to this bill shall not determine this 2a & 33 
session of Parliament.' But the donbt has been cleared up ^ j ' 
without express enactment or decision npon the point, and 
the royal assent is now given to bills as soon as they are 
ready to receive it. The validity of the royal assent by com- 
mission is certified by 33 Henry VIII, c« 21, the Act for the formal 
attainder of Queen Catherine Howard. It is declared in that '^^^^ 
Act- 
That the king^s royal assent by his letters patent tinder his great 
seal mnd signed mtk his hemd, and declared and notified in his 
absence to the Lords spiritual and temporal and to the Commons 
sssembled together in this high house is and ever was of as good 
strength and force as though the king's person had been there per- 
sonally present and had assented openly and publicly to the same. 

And also-*— 

That this royal assent and ail other royal assent hereafter to be so 
givsn by the kiogs of tbb realm and notified as aforesaid, shall be 
taken and reputed good and effectual to all intents and purposes 
without doubt or ambiguity ; any custom or use to the contrary 
notwithstanding. 

The provisions of this Act are followed^ and the commission 
10 under the sign manual as well as the great seal. The only 
departure &om the law on this subject was in the case of the 
Begency Bill of 1811, when Greorge III was incapable of 
expressing any rational intention^ and a commission was 
nevertheless sealed for the purpose of giving his assent to the 
bilL 

^ Gardiner, History of England, iv. 127. 



254 THE CROWN IN PAELIAMBNT. [Vin. 

Modes of There are three forms of expressing the royal assent to a 
(^'toT'*' bilL A pnblic bill is made law by the expression of the royal 
^^^ assent in the same form as that in which the kings of the 
fourteenth century were wont to reply to petitions for legisla- 
The royal tion. A &voarable answer was couched in the words ' le roy 

veto: 

le veult'; but if the king was unwilling to legislate he was 
also anxious not to offend by a curt refusal, and he ' smiling' 
put the question by * with the words ' le roy s'avisera.' 

These words, which amount to a veto upon legislation, have 
been seldom used since legislative procedure assumed its 
modem shape, save in the reign of William III. 

It was probably the recent limitations imposed by the Bill 
of Rights on the suspending and dispensing power which gave 
rise to the frequent use of the veto by WiUiam m, whose 
position differed in some respects from that of his predecessors 
and successors, 
why not The Tudor monarchs, with their packed Parliaments, had not 
Todors or the same risk of being asked to assent to legislation of which 
Stuarts, ^j^gy disapproved, although Elizabeth exercised the right of re- 
jecting bills on at least one occasion very fireely ^. The Stuarts, 
with their exalted ideas of the prerogative, might readily assent 
to legislation from which they held themselve entitled to be set 
free by the use of the dispensing and suspending powers, 
or at the If^ on the other hand, the Crown in modem times disapproves 

present ... . . 

time ; of proposed legislation, it must begin its opposition earlier. 
The Queen can inform her ministers that a bill which they 
intend to propose is distasteful to her, and that she cannot 
entertain it. If the ministers insist upon their measure she 
can dismiss them and employ others, in the hope that those 
others may be supported by Parliament. She can appeal 
from her ministers to Parliament. If Parliament, in its desire 
for this particular measure, refuses its confidence to the new 
ministers, and puts them in a minority on divisions upon im* 
portant questions, the Queen has one more resource. She can 
dissolve Parliament and appeal to the country. If the con- 

1 Pari. Hilt. i. 905. 



§ 3.] THE CBOWN AS A PAETY TO LEGISLATION. 255 

stitnencies retnm a new Parliament pledged to the measure 
of wliieh the Crown disapproves, this last resource has fsdled. 
It remains for the Crown, in the words of Lord Maoaulay, ' to 
jrield, to abdicate, or to fight/ 

William III had neither a packed and submissive Parlia- why uBed 
ment, a dispensing power, nor a responsible Ministry. He \f in. in. 
could not through ministers make his wishes felt in the in- 
ception of a bill, and being bound to observe the laws to 
which he assented, he chose to be circumspect in giving his 
assent. To a nation used to the arbitrary dealings of the 
Stuarts with law, the use of his veto by William was not 
regarded as a violation of constitutional usage. This may 
account for the fSEict that his refusal to assent to measures so 
important as the Place Bill and the Bill for Triennial Parlia- 
ments, when they first were presented to him, did no more 
than cause disappointment. But in this respect his reign 
must be regarded as a transition period. Anne exercised the 
veto once, when in 1707 she refused her assent to the Scotch 
Militia Bill. Since then the words * le roy s'avisera ' have 
never been used. 

A private bill receives the royal assent in a different form, (h) To a 
suggesting its character as a private petition, by the words ^^* ' 
' soil fait comme il ed dewrS! 

The Petition of Bight is the only great public statute to 
which the royal assent is g^ven in terms applicable to a 
private bill : and perhaps the Petition of Bight may be re- 
garded not so much as a statute making new law as an 
address of both Houses to the Crown that the ancient laws 
and statutes of the realm should be observed. It may be 
that to such an address it was not thought suitable to reply 
in the words of assent to a request or proposal for new 
legislation. 

A money biQ is a grant of supply or an appropriation of (c) To a 
supply granted by the Conmions to the Crown, and it needs "'"'^ 



266 THE GBOWN IN PABLUMENT. [YIH 

for its efficacy the afisent of the Loards ajii. the Crown. The 
form of assent to sach a bill k ' La Beyu remerde id ion 
nyeUi aocepte leur benevolence et ainri le veultS 

The process of giving the Boyal assent by Commission may 
be illustrated by an extract from the Journal of the House of 
Lords for the year 1880. 

The Lord Chanodlor, on the 2nd of September in that 
year, acquainted the Lords that * Her Majesty had been 
pleased to issue a Commission to several Lords therein named 
for declaring Her Royal assent to several Acts agreed upon by 
both Houses of Parliament.' 

The Lords Commissioners sent to desire the attendance of 
the Commons, and the Commons attended with the forms 
described in a preceding chapter, the Speaker bringing with 
him the Appropriation Bill. Then the Lord Chanoellor said : 

My Lords and (Gentlemen of ike Houfie of Commonsi 

Her Majesty, not thinking fit to be personally present here at this 
time, has been pleased to order a Commission to be issued undo^tiie 
Great Seal, and thereby given Her Boyal assent to diyers Acts agreed 
upon byboth Houses of Parliament, the titles whereof are particularly 
mentioned ; and by the said Commission hath commanded us to 
declare and notify Her Eoyal assent to the said several Acts in the 
presence of you the Lords and Commons assembled for that pur- 
pose : which Commission you will now hear read. 

The Commission was thereupon read, and the schedule con- 
taining the titles of the Acts to which assent was to be given, 
and the Lord Chancellor then spoke again : 

Li obedience to Her Majesty's commands and by virtue of tbe 
Commissicm which has now been read, we do declare and notify to 
you the Lords Spiritual and Temporal, and Conmions in Parlia- 
ment assembled, that Her Migesty hath given Her Royal assent to 
the several Acts in the schedule to the conmiisslon mentioned: and 
the Clerks are required to pass the same in the usual form of 
words. 



■^"•"-«»«M 



m* •' *-9m ■ '*■ 



m ^ 



mm 



§3] 



THE OEOWN AS A PABTT TO LEGISLATION. 



257 



Then the Clerk of the Parliament, having received the Monej 
Bill from the hands of the Speaker, brought it to the table, where 
the Clerk of the Crown read the titles of that and other Bills to be 
passed, severally as follows, viz. : 

Appropriation Act 1880. (Sess. 2.) 
To this Bill the Boyal assent was pronounced by the Clerk of the 
Parliament in these words, viz. : 

La Beyne remerde ses bons snjets accepte leur benevolence et 
ainsi le venlt. 
Then the Clerk of the Crown at the table read the titles of the 
Bills to be passed severally, as follows, viz. : 

Post Office (Money Orders) Act 1880. 
Doctors' (Scotland) Act 1880.. 
(and a number of others.) 
To these Bills the Boyal assent was pronounced by the Clerk of 
the Parliament in these words, viz. : 

La Beyne le Yeult. 
Lord Plunket's Indemnity Act 1880. 
To this Bill the Boyal assent was pronounced by the Clerk of the 
Parliament in these words, viz. : 

' 3oit fedt comme il est desire.' 



8 



^ 



CHAPTER IX. 

THE BXBOUnVB AND LEGISLATUEB IN 00NFLIC5T. 

I HAVE now deBcribed the oonstitation of Parliament, and its 
action in Legislation. I wish now to consider the vaiions 
ways in which one of the three parts of this legislatiye body 
has tried to act independently of the other two in respect of 
legislation, or to control or inflnenee the others so as to get 
legislation practically into its own hands. I do not reckon 
among influences of this sort the greater power which the 
Honse of Commons of the present day exercises in proportion 
to the other two branches of the legislature. This power is 
due to natural causes, to the &ct that the House of Commons 
represents large numbers, and keen political interests or viyid 
wants. I propose to deal with infringements by one part of 
the legislature of the rights of another either by direct invasion 
or assumption of those rights, or by indirect influence obtained 
over those who ought to have maintained them. The period 
over which the conflict extends must be taken to commence 
after the settlement of the respective rights of Crown, Lords, 
and Commons in Legislation described in Chapter Y 11 of this 
book. The direct assault by the Crown upon the concuirent 
law-making and taxing powers of Parliament lasted thrcmgh 
the sixteenth and seventeenth centuries ; the indirect influences 
brought to bear by the executive on the legislature, and 
specially on the House of Conmions, are mostly matters of 
eighteenth-century history. 



§1.] BOTAL PBOGLAMATIOX. 259 

The Crown, as being at once the execatiye and a branch of 
the legislatore, is also that branch of the legislature which 
has most ofben and in the greatest variety of ways endea- 
Yonred to assome to itself legislative power or to subordinate 
to itsdif the other branches of the legislature. And it is 
possible to distinguish and classify the forms which have been 
assumed by these endeavours of the Crown« 

The Crown has tried to legislate independently of Parlia- 
ment : it has tried to nullify legislation effected in the entire 
Parliament by dispensing with the operation of statutes in 
individual cases, or by suspending their operation altogether ; 
it has tried to raise money without parliamentary grant ; it 
has tried, personally or through its ministers, to influence the 
legislatnie by the corruption of members or the corruption of 
constituencies. Or one may summarise the forms assumed by 
these attempts of the Crown thus : 

1. Claim to be independent of Parliament in legislation. 

2. Interference with the action of Parliamentary legislation. 

3. Claim to be independent of Parliament in taxation. 

4. Influence brought to bear on elections or members. 

§ I. Boj/al ProclamatiaM. 

The efforts of the Crown to assume to itself independent 
legislative powers found some colour in the identity in early 
times of the executive and the legislature, of the King in 
Council and the King in Parliament. The King in Council 
had once legislated, and, as we have seen, continued to legis- '^•^f 
late by way of Ordinance for some time after Parliament had LegigUtion 
acquired legislative power, and this oflen took place with the ^y^^°' 
sanction and approval of Parliament. Of the legislative 
character of the ordinance as distinguished from statute I 
have already spoken, and also of the jealousy which this prac- 
tice of independent legislation by the Crown in Council 
created. This jealousy was awakened as the confusion between 
the Executive and the Legislature cleared away, and Parliar 

S 2 



260 THE EXBOUTIVB AND LBGISLATUBB IN OONPLICT. [iX. 

ment, and eBpecially the Commons, realised the importance of 
insisting npon the fulfilment of the terms of the Statute of 
Edward II, whereby the consent of prelates, earls, barons, and 
the commonally of the realm was required to matters which 
were to be established ' for the estate of the king, the realm, 
and the people.' 

I^egislation by ordinance, which had been denounced at the 
end of the fourteenth century and which had disappeared 
revivod in during the fifteenth, revived in the sixteenth in the form of 
tion. legislation by Boyal Proclamation. 

The modem form of Proclamation has already been set 
forth in an earlier part of this book, but the Proclamations of 
the Tudor sovereigns were a great deal more than ministerial 
acts summoning or proroguing Parliaments, or exercising 
powers conferred upon the Crown by Statute. They made 
new laws, new ofiences, new punishments, and the offences 
were tried and the punishments inflicted by the Court of 
Star Chamber. 
Stfttute of Henry YIII, who showed extraordinary skiU in using the 
tiona. machinery of the Constitution for its own destruction, obtained 
in 1539 the passing of the Statute of Proclamations. The 
ostensible object of this statute was to enable the execntivei 
when Parliament was not sitting, to act promptly as occasion 
might require. It professed to gfuard the laws and customs 
of the realm and the person and property of the individoaL 
31 Hen. Nevertheless it enacted that Proclamations made by the king, 
0. 8. ' with the advice of his honourable council, or of a majority of 
his council, ' should be observed and kept as though they 
were made by an Act of Parliament,' and permitted tha en- 
forcement of such proclamations by such pains and penalties 
as the King and Council should see requisite. Such an Act 
was, as Dr. Stubbs describes it, ' a virtual resignation of the 
essential character of Parliament as a legislative body; the 
legislative power won for the Parliament firom the king was 
used to authorise the king to legislate without a Parliament ^ 

^ Stubbs, Const. Hist. ii. 588. 



§ I.] EOTAL PROCLAMATION. 261 

The Statute of ProclamationB endnred but for a short time ; Proolama- 
it was repealed by i Edward VI, c. la, s. 4, but the practice e^i^^" 
continued, and though royal proclamations had no longer by ^• 
statute the force of law, they were used to introduce ecclesias- 
tical changes and social and economic regulations; they were 
enforced by penalties of fine, imprisonment, and even slave 
labour on the galleys ^ In the reign of Mary the validity of Mary, 
such proclamations was called in question, and the judges did 
not hesitate to assign to them their proper legal character as 
statements of existing law, and not sources of new law. 

'The king, it is said, may make a proclamation quo ad 
terrorem populi to put them in fear of his displeasure, but not 
to impose any fine, forfeiture or imprisonment ; for no pro- 
clamation can make a new law, but only confirm and ratify 
an ancient one \* 

Nevertheless the Tudor queens continued to legislate by 
way of proclamation more freely than the kings of the 
fourteenth century had ever ventured to do by ordinance. 
Impositions were laid upon imported goods, sumptuary rules Elizabeth. 
were made as to the building of houses, and the quality of 
apparel; trade regulations were enforced by punishments in 
excess of those which the common law would have inflicted. 

James I used this method of legislation quite as freely. James I. 
In the proclamation by which he summoned his first Farlia- 
ment he tried to limit the choice of the electors by describing 
the quality of the candidates to be elected, and the discretion 
and duties of the sheriff by a charge that writs were not 
to be sent to ancient or depopulated towns. He levied 
impositions by the same process ; a matter which is better 
considered when I come to deal with the king's claim to levy 
money without the consent of Parliament. He interfered in 
Tarious ways with personal liberty and freedom of traded 
bidding country gentlemen to leave London and gpo and 

* Hallam» Sst. of England. L 38. ' Ibid. L 337. 

* For specimens of snch prodamaiions see Rymer. Old ediiian zvii. 417, 
607 ; Hague edition, vol. yii. part 4, pp. 16, 143. 



262 THE EXECUTIVB AND LEGISLATUBE IN CONFLICT. [iX. 

maintain hospitality in their own honsee, forbidding the 

increase of buildings about London, and the making of starch 

Judicial out of wheat. But the proclamations on these last matters 

on their elicited a judicial opinion which must be taken as a final* and 

*^* conclusire statement of the law upon the subject. Coke was 

consulted as to their legality; he asked leave of the Council 

to confer with some of his brethren on the Bench, and three 

judges were appointed to assist him. The result of their 

consideration may be thus set forth : — 

' I. The king by his proclamation cannot create any offence 
which was not one before ; for then he might alter the law 
of the land in a high point ; for if he may create an offence 
where none is, upon that ensues fine and imprisonment. 

' 2. The king hath no prerogative but what the law of the 
land allows him. 

* 3. But the king, for the prevention of offences, may by 
proclamation admonish all his subjects that they keep the 
laws and do not offend them, upon punishment to be inflicted 
by law : and the neglect of such proclamation aggravates the 
offence. 
I a Co. Rep. '4. If an offence be not punishable in the Star Chamber the 

prohibition of it by proclamation cannot make it so.' 
Conbtitu- It woxdd be difficult to find a decision in which the salient 
valae points of our Constitution are set forth in so few words : and 
it is the more interesting as having been delivered at a time 
when a dear statement of the points at issue between Crown 
and Parliament was greatly needed, and when the first step 
to be taken towards a settlement of constitutional difficulties 
was that the nature of those difficulties should be understood. 
The king's prerogative is ascertainable by rules of law, and 
is limited by those rules ; he cannot make new nor alter 
existing laws, nor create new offences, nor constitute new 
courts for the trial of offences otherwise provided for. He is 
the executive, his business is the enforcement of existing law. 
If he thinks he can best enforce it by proclaiming it, he is 
welcome to do so. The judges in awarding sentence upon 



of the 
opinion. 



^mmt 



{ I.] BOTAL PROCLAMATIONS. 263 

offisnderB against the law so proclaimed may faiily consider 
that the waming aggravates the offence. 

The administration of the law is with the Crown in Council, 
the making or altering of the law is with the Crown in 
Parliament. 

If one asks where is the law to be fonnd hj which the 
king's prerogative is determinable, the answer is ' in states, 
m judical decisions, in the cnstoms of the realm.' If one asks 
what power in the State can do that which Coke says the 
king can not do, the answer is that the Crown in Parliament 
can make, unmake, and alter the law which it is the duty of 
the Crown in Council to administer. 

The indefinite jurisdiction of the Star Chamber was at this 
moment one of the open questions of the Constitution, and 
in ihia matter Coke goes no fiirther than to say that, what- 
ever its existing rights may be, they cannot be increased by 
the method of proclamation. 

Proclamations continued to be made, not only by James I 
but by Charles^, and so long as the Star Chamber continued 
to exist it was difficult to prevent their enforcement by some 
form of penalty. But when the jurisdiction thus assumed by 
the Privy Council had been abolished by the Long Parliament i6 Car. i, 
and there remained only the regular tribunals before which ^' '^' 
it was possible to tiy offenders against the proclamations of 
the Crown, the dicta of Coke and his brethren took effect, 
and we hear little more of this encroachment of the preroga- 
tive on the rights of Parliament. 

Perhaps we may find in an episode of eighteenth-century niastra- 
history as good an illustration as possible of the difference i^ ^^ 
between legal and illegal proclamations. illegal 

. . prodama- 

When Lord Chatham and his colleagfues took office in the tions. 
summer of 1766 the ministers of the Crown thought them- 
selves bound to take measures in view of the great scarcity 
ooeasioned by a bad harvest. By their advice two Boyal 
Proclamations were issued. 

^ Hallain, Hiii. of England, ii. 25. 



264 THE EXECUTIVE AND LBGISLATIIBE. [iX. 

ProcU- There weie on the statute-book certain laws against fore- 

l^w^ of ^^^^^ <^^ regraters, persons who bonght up com and kept 
^moni- it back to get a high price, or who carried com ftom one 
part of the conntry to another in order to take advantage of 
better prices where the com was scarcer. Whatever may 
have been the economical merit of these laws, the Crown was 
within dts rights in proclaiming them and the penalties for 
the breach of them. A proclamation of these statntes was 
just such an admonition ' for the prevention of offences ' as 
came within Coke's description of a legal exercise of the 
prerogative. 

Bat the ministry went Airther. Without waiting for the 
summons of Parliament they advised the king by proclamation 
to lay an embargo upon all ships laden with wheat or wheat- 
Hour. Such a restraint was contrary to the provisions of 
statutes, which made the export of com firee. When Parlia- 
ment met, the ministers were severely attacked for having 
counselled the Crown to break the law, and it is to be noted 
that they did not for a moment attempt to defend the l^^ty 
The Forty of the proclamation. They daamed to have acted for the 
Tjnmny. ^'^^ ^^ ^^ emergency, and Lord Camden said that ' it was 
but a forty days tyranny.' After acrimonious debates an Act 
of Indemnity was passed in &vour of the ministers who had 
advised and the officials who had carried out the embargo. 
Prftctical The whole proceeding illustrates the difficulty which the 
of BabjMt. Statute of Henry VIII proposed to meet. Ordinarily the 
law is sufficient for all circumstances that may arise, but 
there may be occasions when the executive must act in breach 
of the law. The Act of Henry VIII solved the difficulty 
by giving to the Crown in Council a discretionary l^islative 
power. It is safer to allow the executive to act at its peril 
on the chance of an indemnity ; and, though timid ministers 
may shrink from risk and responsibility when action is 
required, we must choose between such possibly unreason- 
able inaction and the greater danger of placing the Crown 
and its ministers above the law of the land. 






§ 2.] THE DISPENSING POWEB. 265 

§ 2 (a). The Dispensing "Power. 

The power claimed by the Crown to legislate by way oflJBesofthe 
Proclamation differs from the dispensing power in this, that powOT. 
the former would enable the Crown to make new law, the 
latter wonld enable it to remedy inconveniences ariaiog from 
existing law. Bat the claim of the Crown to independent 
legislative power was never admitted, and, when called in 
question, was uniformly declared illegal, while the power to 
dispense with the operation of statutes seems, within certain 
limits, to have been unquestioned. It may have been of prac- 
tical utility, for, as Mr. HaUam says^, ' the language of ancient 
statutes was usually brief and careless, with few of those 
attempts to regulate prospective contingencies, which, even 
with our pretended modem caution, are often so imperfect ; 
and as the sessions were never regular, sometimes interrupted 
for several years, there was a kind of necessity, or great 
convenience, in deviating occasionally from the rigour of 
a general prohibition.' But he adds that more often some 
motive of interest or partiality would induce the Crown to 
infringe upon the legal rule. And there seems no doubt that 
in the mediaeval constitution pardons or dispensations from 
the observance of statutes seem to have developed into 
something very different from a remedy for individual cases 
of inconvenience or hardship. 

In 1347 the Commons petitioned against the grant ofBot. Par. 

Vim 172. 

charters of pardon in great numbers of cases of murder, rob- 
bery, rape, and other felonies, and the king promised to use 
this prerogative henceforth for the honour and profit of the Modes of 
people, and to consider in Council the cases in which pardons 
had already been granted. But again in 1351 a like remon- 
strance was required, and the nature of the dispensations is 
shown by the statement that the number of these charters was 
flo great that the County authorities dared not indict malfeasors. 
The pardon was given not after conviction but before indict- 

^ Hallom, Hiti. of EngUod, iii 60. 



ezercsiBe. 



266 THE BXBOUnVB AND LBCHSLATUBB IN OONPLIOT. [iX 



Bot. Par. 
ii. 229. 



15 Ric. n, 

c. I. 



lUnstn- 
tions. 

Vaugliaii, 
330. 



ment, and the prayer is that such charters should not 
henceforth be given to common male&ctors and mnrderers, 
nor to any one, so fiir as is consistent with the king's oath and 
conscience ; bnt that such common malefactors and mniderers 
should be brought within the law for the quiet of the com- 
monalty and the maintenance of the peace. 

In order to prevent sach hasty grants of pardon for offences 
the nature of which was hardly known to the king who par- 
doned them, a statute was passed in the reign of Bdchard II 
providing that no such grants should be made unless the name of 
the offender and the precise character of the offence were specified 
in the terms of the charter. And while the Commons re- 
monstrated against the exercise of the dispensing power in 
the form described, the Courts of law endeavoured to frame 
some rules for its limitation. It was held that the king 
could not dispense with mala in #^, which were said to be vio- 
lations of common law ; nor with statutes passed to prohibit 
mala in se^ or in other words, to put common law into the 
form of a statute ; nor with the rights of individuals or corpo- 
rations. But it was very hard to define the power of the 
king to dispense with penal statutes, and the difficulty may 
perhaps be best illustrated by two cases both decided near the 
end of the seventeenth century. 

The case of TAomoi v. SorreU was an action brought for 
penalties for selling wines by retail contrary to the Statute 
17, Car. II, c. 25. 

An Act of the reign of Edward VI had forbidden the sale of 
wine by retail save with licenses granted in certain forms by 
certain authorities. James I incorporated the Vintner's C<Hn- 
pany and gave them the right to sell wine by retail or in 
gross in and within three miles of the City of London, and in 
other places non obstante the Statute of Edward VI. 

The Statute of Charles II, which imposed fresh penalties 
on the sale of wine by retail, saved the rights of the Vintner's 
Company, of whom the defendant Sorrell was one. 

The questions for the Court were, whether the patent of 



^Ii^ 



§ 2.] THE DISPENSING POWER. 267 

James I was void in its creation : if not, whether it expired Thomas y. 
when that king died ; if not, whether the saving clause of ^^^^ ' 
12 Charles II, c. 25, saved it from the operation of that 
statute : and the Court had no difficulty in deciding the last 
two questions in the affirmative. 

It remained therefore to decide whether the original dis- 
pensation was valid, and to the consideration of this point 
Vaughan C.J. devoted much learning and ingenuity. He 
disting^hes a IHspensationy or relief from the consequences 
of an unlawftil act done or contemplatedj from a LkeTise^ or 
permission to do an act which may legally be done subject to 
the grant of such a license, and from a Pardon or relief, 
after conviction, from the penalties of wrongdoing. A dis« 
pensation then may be granted either before or after the 
doing of the illegal act, but in contrast to a pardon it 
must be given *so as the offender shall not be impleaded 
for it/ The distinction between mala prohibita and mala 
M M he rejects as confrising, and rightly so, for no act is 
legally malum unless forbidden by law. He denies the power 
of the Crown to dispense with any general penal law, and he 
endeavours to define the dispensing power by limiting it to 
cases of individual breaches of penal statutes where no third 
party loses a right of action, and where the breach is not 
continuous. The forfeiture in the case before the court was a 
part of the king's inheritance. No private right was there* 
fore affected by the dispensation granted, nor was it contrary 
to the intention of the Act of Edward V I, which was not that 
no wine should be sold, but ' only that every man should not 
sell wine that would, as they might when the Act was made.* 
And so ' the king could not better answer the end of the Act, Vaughan, 
than to restrain the sellers to freemen of London.' ^^^' 

The judgment of Vaughan C* J. shows the extreme diffi- 
culty of limiting the power ascribed to the Crown. His 
conclusion seems in substance to amount to this^ that the king 
might dispense with an individual breach of a penal statute 
l>y which no man was injured, or with the continuous breach 



fi 



268 THE BXBOUTIVB AND LEGISLATURE IN CONFLICT. [iX. 

of a penal statate enacted for his exdosive benefit. Although 
the judgment may be taken to repreeent all the learning of 
the time on the subject of the dispensing power, it cannot 
be said to present a satisfactory view of the law where 
perhaps it was impossible to state the law in a clear and 
satis&ctory form, 
a Shower, In Oodden T. Hales the matter for which the king granted 
a dispensation was a continnoos breach of a general penal 
statate passed in the interest of the state religion. 
Abaie of * The cause of action was debt for ;f 500, and the action arose 
pow^!'^"^ as follows. The defendant, holding a militaiy office under the 
king, had neglected to take the oaths of supremacy and alle- 
giance and to receive the sacrament according to the rites of 
the Church of England as required by 2$ Car. II, c. 9. For 
this he was indicted at the Rochester assizes in March 1686 
and convicted, and the plaintiff became entitled to the forfeit 
of ;£'5oo as by the statute was provided. Sir E. Hales set up 
in defence letters patent under the Great Seal, received from 
the king before the date of the indictment, and discharging 
him from taking the oaths, from receiving the sacrament, 
and in other n»pecto fiom satisfying the te»te prescribed by 
25 Car. II, c. 2. 

The case was tried in the Court of King's Bench, but the 
opinions of all the judges w^re taken, and eleven out of 
twelve pronounced in favour of the king's right to dispense 
with the last Act. They did not trouble themselves with the 
nice distinctions which had perplexed the question as dis- 
cussed by Vaughan, but said boldly that the laws were the 
king's laws, that he might dispense with them as he saw fil^ 
and need render no account for so doing. 
Distinoiion Whatever may be the technical difficulty in distinguishing 
2^^^|[|^^ the constitutional limits, as they existed in 1685, of the king's 
Sorrell dispensing power, there is none in distinguishing such cases 
Qoddtn ▼. as Thomas v. Sorrell and Oodden v. Hales. In the one the 
king in the interest of trade granted a dispensation from 
penalties provided for his benefit ; in the other the king in the 



§2.] THE DISPENSING POWER. 269 

interests of a religion whieh was not that of the nation, set 
aside penal laws whieh had been passed for the security of the 
national religion. 

There was no donbt that the king intended to put himself I»*««P^- 

, tation of 

above the law, and, apart from all legal interpretations of the diBpenBing 

dispensing power, to set aside statutes as he pleased. For he S^^^gT 

had announced to Parliament at the beginning of the session 

of 1685 that he proposed to employ certain persons not quidi- 

fied by law to hold commissions in the army. The Commons 

had addressed him in terms of remonstrance, and had offered 

to introduce Acts of Indemnity in favour of such persons as 

he might wish to employ, being under the disabilities created 

by ^5 Car. II, c. 2 : and they stated that ' the continuance of 

ihem in their employments may be taken to be a dispensing 

of that law without Act of Parliament, the consequence of 

which is of the greatest concern to the rights of all your 

Majesty's duti&l and loyal subjects, and to all the laws made 

for the security of their religion.' 

To this remonstrance the king replied with a rebuke to the 
Commons for their lack of confidence in him ; and it would 
seem that if a dispensing power claimed for such pm'poses and 
with such an intention could by any possible interpretation 
come, as Mr. Hallam seems to think it might come \ within 
the legal rights of the crown, it were idle to endeavour to 
draw nice distinctions concerning the limits of a power which 
WBB in effect superior to Parliament. 

So thought the Parliament which passed the Bill of Rights^ 

for the dispensing power is therein dealt with in such a way 

as to preclude its further exercise. 
It is declared and enacted : 
(j) That the pretended power of dispensing with laws, or 

the execution of laws by royal authority, as it hath been 

aoBumed and exercised of late, is illegal. 

(a) In 8. i%j that from and after this present session of 

FSarliament, no dispensation by non obstante of or to any 

^ History of England, liL 6a. 



270 THE EXEGUTIYE AND LEGISLATUBE IN CONFLICT. [iX. 

statate, or anj part thereof, shall be allowed, bat that the 
flame shall be held void and of no e£^t, except a dispensadon 
be allowed of in sach a statate, and except in sach cases as 
shall be speciallj provided for bj one or more bill, or bills to 
be passed daring this present session of Parliament. 
Effect of From these claoses of the Bill of Bights one may dedaoe 
BiffMs ^® following propositions : — 

That the dispensations granted bj James II were iUegaL 

That there were dispensations of older date which the Bill 
of Bights was not intended to invalidate. 

That from the date of the passing of the Bill of Bights no 
dispensation of any Statate or part of a Statate was to be 
valid anless Parliament made provision for the same in the 
terms of the Statate. 

The words non obstante were merely the technical terms in 
which the Crown was in the habit of dispensing with statatea, 
and are eqoivalent to the words ' any article or daase in such 
or sach a statate to the contrary notwithstanding ' : and the 
* bin or bills to be passed ' were never brought forward. 

We may therefore say that the Bill of Bights pat an end 
to the dispensing power, except in certain cases where it had 
already been exercised within what were considered legal 
limits at the time of the exercise ^. Any ftitare exercise of 
the power most take place by aathoiity of Parliament, not by 
the prerogative of the Crown. 



* The Com of JSUm College (reported by Mt< Wmiunt, 1816) fniniflhes An 
initanoe of raoh » dupeniation. The Statutes of thirt College foriwde tlie 
Fellows to hold any apiritiial prefennent in oonjtinotion with a Fellowship ia 
the College. Qaeen Elizabeth gave penmssion to the Fellows to hol4 hvam 
fioes of a oertain yalne without thereby forfeiting their FeUowships 'any 
artide or danse in the Statutes of our said College to the oontnury noiwiUi- 
standing.* It was argued and with reason that suoh a dispensation fell under 
the saying dause *as of late erexcised,' and the dispensation in other respects 
would satisfy the legal requirements set forth by Yaughan C.J. in Thotmae 
T. Borrell. 



§3.] THE SUSPENDING POWEB. 271 



§ 2 (b). TAe Suspending Fower. 

In the time of the Stuarts it mnBt be remembered that the The las- 
dispeiudiig power with which I have just been dealing wbjs £^^^ 
made to rest npon something more than precedent or con- 
-venience : it was claimed on behalf of the Crown because the 
king was saperior to law and the source from which law 
emanated* On this gronnd had been based the decision of 
the Court in Oodden v. Hales^ and acting on this estimate of 
his prerogative James II ventured in the jear 1687 to free 
himself from the necessity of granting dispensations in indi- 
vidual cases, and to suspend all the penal laws relating to 
religion. 

' We do declare/ runs the celebrated Declaration of Indul- The De- 
gence, ' that it is our royal will and pleasure, that from hence- ^f xn. 
forth the execution of all and all manner of penal laws in di>lfi^<»- 
matters ecclesiastical, for not coming to church or for not 
receiving the sacrament, or for any other nonconformity to 
the religion established, or for or by the reason of the exercise 
of religion in any manner whatsoever, be immediately suepended^ 
and the further execution of the said penal laws, and every of 
them is ierdy suspended* The declaration goes on to say 
that 'the oaths of supremacy and allegiance and also the 
several texts and declarations mentioned in the Acts of 
Parliament made in the twenty-fifth and thirtieth years of 
the reign of our late royal brother King Charles II shall not 
at any time hereafter be required to be taken declared or 
subscribed by any person or persons whatsoever who is or 
shall be employed in any office or place of trust either civil or 
military und^ us or in our government.' 

The validity of the claim thus asserted came in a somewhat 
circuitous way before the law courts in the Seven Bishops 
case. Six Bishops, with the Archbishop of Canterbury, peti- 
tioned the king that he would not insist on the reading of 
this declaration by them and its distribution throughout their 



L 



272 THE EXBCUnVB AND LEGISLATURE IN CONFLICT, [iX. 



'^^ . ^ dioceeeB aa had been ordered by tbe King" in Council. For 

petition of , , , 

the. Seven this they were tried in the Court of King's Bench as for a 
^'' seditious libel, and the defence set up came to this — ^that the 
declaration of the king'^s intention to suspend the penal 
statutes respecting religion, amounted to an expression of 
intention to break the law, and that loyal subjects might 
decently, and without seditious purpose, petition against the 
requirement that they should publish an illegal declaration. 

Their petition alleged nothing that was fidse ; it was not 
profferred with malice: if the king's action was illegal or 
doubtful in respect of legality the petition was not seditious. 
The remaining point on which the judges might instruct the 
juiy was whether the l^;ality of the declaration was so sure 
that to petition against it was seditious. On this the judges 
were divided ; two addressed themselyes to the interpretation 
of the law, two to the furtherance of the king's wishes. Of 
the former Powell J. puts the matter in the clearest light. 
^ If there be no such dispensing power in the king,' he says, 
< then that can be no libel which they presented to the king, 
which says that the declaration, being founded upon such a 
pretended power is illegal Now this is a dispensation with 
a witness. It amounts to an abrogation and utter repeal of 
all the laws ; for I can see no difference nor know any, in law, 
between the king's power to dispense with laws ecclesiastical, 
and his power to dispense with any other laws whatsoever. 
If this be once allowed of, there will need no Parliament 
All the legislature will be in the king, which is a thing 
worth considering, and I leave the issue to God and your 

I a St. Tr. consciences.' 

^^* Whatever might be said for the possibility that the dis- 

pensing power could be exercised with salutary effect, it was 
clear that the suspending power as claimed and used by 
James it was inconsiBtent with the very existence of a 
Parliament, as a legislature. The Lords and Commoufl 
might meet to vote supplies, to state grievances, to criticise 
the ministers of the Crown, but it would be idle for them to 



♦ 3-] TAXATION. 273 

make laws whicb. the king could at any moment annul. The 
Sill of Rights accordingly made short work of the sospending 
power, enacting : — 

* That the pretended power of suspending of laws or the 
execution of laws, as it hath been assumed and exercised of 
late by royal authorityi without consent of Parliament, is 
iUegaL' 

The claim of the Crown to levy taxes without consent 
of Parliament is very closely associated with the daim to 
deal with legislation independently of Parliament* For it 
was only by keeping a firm hold upon the sources of extra- 
ordinary revenue that the Commons obtained a hold upon 
legislation. 

It must be borne in mind that I do not propose here to Katare of 
give an account of the sources of royal revenue, but of the re- oomioh. 
spective claims of Crown and Parliament to demand the money 
of the i)eople for the needs of government. The story of the 
controversy is so well told in the two great seventeenth 
century cases that I will not do more than sketch the 
character of the dispute and then leave Bate's case and the 
case of Shipmoney to give the history of the matter as they 
do nearly to its end. 

The king in the fourteenth century had certain sources of Why the 
income, feudal dues, crown lands, fees, fines and the like ; not live of 
and the contention of the Parliaments of those days was that ^ ^^^^ 
the king should ' live of his own.' This meant that the king 
had an income sufiicient for the business of government, and 
khould ask for no more. But it was not really desirable that 
the king should live of his own. If he had done so he would 
have been too great for the liberties of the country or too 
small for its security: he would have been rich enough to 
make him independent of Parliaments or so poor as to 
become contemptible among his rivals abroad and his vassals 



274 THE EXECUTIVE AND LEGISLATURE IN CONFLICT. [iX. 



Model of 
taxation. 



Direct 
aids and 
prises. 



Indirect 
Imposition 
on mer- 
chandise. 



14 Ed. Ill, 
St. J. c 4. 



45 Ed. in, 

c. 4. 



at home. We might never have known parliamentary govem* 
ment because the king would never have had cause to 
ask his people for money, or we might never have become 
a united kingdom because the monarchy would have col- 
lapsed among the rival magnates or have fallen a prey to 
a foreign invader. 

The difficulty never arose, because, in the words of Dr. 
Stubbs, ' no king of the race of Plantagenet ever attempted to 
make his expenditure tally with his ordinary income.' It 
would have been unfortunate either for our liberties, or for our 
independence and cohesion as a nation, if the kings of that 
race had been able or had tried to do so. 

When the king wanted money in excess of the ordinary 
revenue he could obtain it either by direct taxation levied on 
the estimated value of land and chattels, or by indirect taxa- 
tion in the form of impositions upon exports and imports. 
Of these the first had been kept within the control of the 
national assembly or of Parliament by various enactments, 
from Magna Charta onwards, dealing with the different 
forms, — scutages, aids, tasks and prises — which taxation of this 
kind assumed. It was not so easy to maintain ParUamentaiy 
control over impositions on exports and imports. The king 
claimed a prerogative to regulate trade, to define the privi- 
leges of alien merchants, to make agreements, apart from 
Parliament, with the merchants as a sub-estate or class. 

After a long struggle the Commons in 1340 obtained the 
passing of a statute, not wholly satisfieu^tory in its terms, 
limiting the king to a fixed charge on wool, and on other 
things to the ancient customs, unless Parliament granted 
^ore. In 1371 they carried a statute which closed the 
controversy as to wool, and from 1373 ^ they regularly granted 
customs on wine and merchandise for a term of years or for the 
life of the king, tmder the name of tunnage and poundage. 

The claim of the Crown to levy impositions in addition to 
the customs thus granted was not raised for nearly tvo 

^ stubbs, Ck>nst. Wai. ii. 528. 



ia^ TAXATION. 275 

handled yeaxs. Bat in 1557 Mary laid a daty on cloths Imposi- 
exported and another on French wines imported. Elizabeth '^™* 
laid a dnty on sweet wines^ and these continued to be raised 
throughout her reig^. 

Indirect Taxation. The Case of Impositions. 

James determined to derive a substantial revenue from 
impoeitionB of this nature. He began hy the publication of 
letters patent increasing the duty on tobacco from 2d* to 
6s. lod. a pound, and on currants from is. 6d. to ys. 6d* 
Bate, a Turkey merchant, refused to pay the additional impost, The case 
and the Attorney General took proceeding's against him in ^ 
the Court of Exchequer. Bate set up the statute granting 
zs. 6d.y and averred that he had paid all that the law required 
him to pay. Judgment was given against him mainly on the 
ground that trade was matter of general policy falling within a St. tr. 
the discretionaiy power of the king. That power the Court ''* 
held to be twofold, distinguishing apparently between th$ 
administration of known existing law, and the determina* 
tion of the policy of government. The right to control trad^ 
was put on a level with the right to protect merchants from 
foreigpDi oppression and to declare war if such oppression should 
continue. 

The decision does not at the time appear to have struck either 
the bar or the public as erroneous or corrupt. But the effect 
of it was to cause the king to raise the duties upon all kinds « 
of merchandise. Bate's case was decided in 1606, the great 
increase on duties was made by a book of rates published in 
1608, but it was not until 1610 that the Commons took up The pro- 
the matter, and we get the learned argument of Mr. Hakewill CommoiiB. 
in support of a remonstrance against impositions to be pre*- 
sented by the House to the king. The argument falls into Hakcwiii's 
three divisions ; the first is directed to showing that by the •'8^"'*®** • 
analc^es of the Common Law the Crown did not possess the 
rig^ht which it claimed ; the second shows that the claim has 
been resisted whenever made; the third enumerated th^ 

T 2 



276 THE EXECUTIVE AND LEGISLATUEE IN CONFLICT. [iX. 

statutes which preclude the Crown from leyying impositioiis. 
In conclosion he deals vrith tiie reasons assigned bj the Cooit 
of Exchequer seriatim. 
Argament The argument drawn from the Common Law is twofold. It 
mon Law. is laid down as a general proposition that the customs, so far as 
they are not settled by statute, exist by allowance of common 
law ; that for all the expenses of government which the king 
must needs incur, a source of revenue is provided ; ^ for the 
mainteuance of the courts of justice, fines and other like 
profits : for the protection of wards, lunatics and idiots, the 
profits of their lands': for the security of trade by keepings 
up harbours, clearing the sea of pirates, and nuLinfa^ming 
embassies^ the duties on exports and imports recognised 
by law. 

(a) Com- First then it is argued that these common law revenues 
revenues ^^ ^^® Crown are either certain or reducible to certainty. It 
areceriahi, ^Quld be whoUy contrary to the spirit of the Common Law 

that the subject should be liable to pay sums the amount of 
which was arbitrary and uncertain, dependent on the pleasure 
of the person interested in raising them. This principle is 
illustrated from fines, reliefs, aids, and other sources of revenue, 
and the conclusion drawn is that ' custom being, as the above 
revenues are, due to the king at Common Law, arising out of 
the property and interest of the subject, is like them limited to 
m certainty which the king has not power to increase,* 

(b) and Secondly, it is not merely the certainty in amount, but the 

suflSciency for all purposes of the common law revenues of the 
Crown, that goes to show the invalidity of the king's claim. 
The charges arising from the performance of royal duties 
are met by appropriate sources of royal revenue, and it is 
asked ' to what end has the Common Law thus provided for 
the maintenance of the king's chaige but that after tiieee 
duties are paid the subject may hold and enjoy the rest of his 
estate to his own use, free and clear from all other burdens wlui^ 
soever/ For the extraordinary needs occasioned by war thexB 
4s a like provision. War must be defensive or offensive. If 



is-] TAXATION. 277 

defensive, the king can legally call upon every subject at his 
own charge to serve in person. If offensive, it can hardly be 
80 sadden bat what the king can call apon Parliament to grant 
him aid, or if the war be * against the Scots, Welch, or other 
borderers within the land,' the military tenures supply a force 
boand to serve by the terms of their holding. 

The aigaments firom Common Law come to this, that an 
arbitrary imposition such as James daimed the right to levy 
is contrary to the spirit of the law, and that the needs of 
government were sufficiently provided for: that the king 
should ' live of his own,' and if he could not do so, should 
ask aid from Parliament. 

The historical argument which forms the second part of Argument 
Hakewill's speech is not so satisfactory. He states that firom tory. 
the Conquest to the reign of Mary, not six cases could be 
found of impositions levied as James proposed to levy them. 
He defines impositions of this sort as ' an increase of custom 
at the king's pleasure, commanded by him to be taken, the 
passage being free and open to all men,' and he distinguishes 
such impositions from 'dispensations, or licences for moneyi 
to pass with merchandise prohibited by act of Parliament to 
be exported ' ; firom the rare cases of subsidies exacted from 
merehantd in time of necessity by ordinance of the king and 
magnates without assent of the Commons ; from forced loans 
collected from merchants ; firom agreements made with mer* 
chants to grant them trading privileges in consideration of 
payment of money ^. He is successM in showing that the 
cases he cites had never passed without remonstrance by the 
Commons, and that from the death of Edward III to the 

^ Of these modes of ndring money the dispensations were an exercise of the 
dispensing power mentioned aboye, but they were none the less regarded with 
Jealousy by the Commons, and efforts were made to prevent snoh dispensations 27 Ed. Ill, 
by statute. Of impositions by Ordinance, Hakewill gives but one instance, b. a^ c 7. 
and then the Ordinance was revoked as soon as made, l^e forced loans were 
lawfol if ' bona Jlde borrowed and truly intended to be repaid.' The n^go- 
tiatioins with the merchant class were resisted and finally stopped by the 
Commons ; they would not allow the King ' to purchase a relief firom direct 
imposts by conniving at MoUix manipulation of direct tazation,' 



278 THE EXECUTIVE AND LEGISLATURE IN CONPLICT. [iX. 

accession of Maiy no such duties had been imposed. His 
statements as to the impositions levied hj Maiy and Eliza- 
beth are not perfectly clear, nor does he tell the whole story< 
It seems certain that both these queens imposed duties, that 
throughout their reigns duties were paid on exported cloth 
and imported wine, and that no question was raised in Parlia- 
ment concerning them ^. 
Argument The third chapter of the argument consists in a recital of 
Statute, the statutes which Hakewill held to be conclusive against the 
claim of the Crown, and here again it is hard to admit that 
the statutes meet the case. He begins with Magna Charta, 
§ 41, ' All merchants maj safely and securely enter England 
and depart thence and remain and go to and £ro therein by 
land and by water, to buy and to Bell, free of all evil tolh by 
the old and rightful customs, save in time of war, and if they 
be alien enemies,' 

Lest this should be taken to apply to foreign merchants, he 
cites 2 Edward III, c. 9. * All merchants, strang^ers, 9J1A privies 
may go and come with their merchandise into England afber 
the tenor of the Great Charter.' 

He next cites the statute de Tallagio non concedendo, which, 
whatever its intention may have been, refers to ' tallages or 
idds ' and not to indirect taxation, and 25 Edward I, c. 7, 
which was closer to the point, for it recites a release by Edward 
of an imposition complained of by the Commons, and a de^ 
claration by him, ^ for us and our heirs, that toe shall not tale 
such things without their common assent and good toill^ saving 
certain customs therein granted by the Commons. Lastly he 
cites 14 Edward III, st. i, c. ^i, which was an answer to a 
petition of the Commons against the taking of more than the 
ancient custom on wool, woolfell, leather, tin and lead. The 
king in turn asks for a subsidy, and the statute, reciting 
the requests of king and commons and the grant of the 
subsidy, proceeds to enact that the king will take no more 
in future than 6s, Sd. on the sack of wool, and on the other 

^ Hallam, Hiitoiy, i. 317. 



{ 3-] TAXATION*. 279 

things no more than the ancient custom without consent of 
Parliament. 

The whole of Hakewill's argument on the subject of impo- Difficulties 
sitions is a good illustration of the form which constitutional ^^^ ^*{ 
difficulties took in the time of the Stuarts. Neither prece- m«i^t. 
dent nor statute was conclucdye ; each disputant thought he 
had the law on his side, and each had in fact an arguable case ; 
for statutes and precedents were applied to circumstances which 
they were never designed to meet. Difficulties had arisen 
between the Plantagenet kings and the Commons as to the 
right of the king to tax and levy impositions ; these had been 
met from time to time, sometimes by a concession from the 
king of the point immediately at issue, sometimes by a com- 
promise, sometimes by a statute which provided for the cir- 
cumstances of the case. When similar difficulties arose two 
hundred and fifty years later, both parties appealed to the ancient 
precedents and statutes, and the Courts had to determine the 
rights in question. On a strict and literal application of the 
law, as settled in the reign of Edward III, to the circumstances 
of the reign of James I, having regard to the recent prece- 
dents of the reigns of Mary and Elizabeth, Bate's case was 
by no means dear. But we, who look at the question from 
further off, can see that the statutes and precedents of the four- 
teenth century^ if they meant anything, meant that the king 
should not raise money without consent of Parliament, and 
that in the matter of impositions they covered the articles of 
commerce of the time. The decision in Bate's case violated the 
spirit of the constitution rather than the letter of the law. 

Hakewill's argument led to a remonstrance by the Com- 
mons, and this to a reduction of impositions for a while, but 
the Crown continued to use them as a source of revenue. 
They were not touched by the Petition of Bight, which dealt a Car. I, 
only with ' gift, loan, benevolence, or other suchlike charge,' ' ' ' ' 
and it remained for the Long Parliament to prohibit them. 
In the Act of 1640, which granted the king tunnage and 
poundage for that year, punishments were provided for any 



280 THE EXECIJTIVB AND USGISLATTJBE IN CONFLICT. \lX. 

officer who shotdd levy such cnstoms without Parliamentary 
grant, and it was further ' declared and enacted that it is and 
hath been the ancient right of the subjects of this realm that 
no subsidy, custom, impost, or other charge whatsoever ought 
or may be laid or imposed upon any merchandise exported or 
imported by subjects, denizens, or aliens, without common 

lo Cat* I> 

c. 8, B. I, consent in Parliament/ 

Direct Taxation. The Case of Shipmoneg. 

Tfaeoaeeof The form which this mode of taxation took was a writ 
■H*»pden. ^jj^gp ^^ Great Seal addressed to the sherifiP of each county, 
II St. Tr. demanding for the king's service a ship or ships of a specified 
tonnage to be sent fitted, manned, and victualled, to Ports- 
mouth on a certain day ^. The cost was to be assessed for the 
county and some of its boroughs by the sheriff; for other 
boroughs by the mayor or bailiff. Hampden's share of the 
contribution demanded from the county of Bucks was £\. 
He refused to pay it, and was smnmoned to show cause in 
the Court of Exchequer in Trinity term of the 13th Charles I. 
The counsel for Hampden followed the same line of argu- 
ment as was adopted in the Parliamentary discussion on the 
case of Impositions. 
Argnment The provision made by the law for the defence of the 
moi^lftw^' country by sea was the grant to tiie king of tunnage and 
poundage, and the service of the Cinque Ports. To this pro- 
vision the right assumed by the Crown of levying impositions 
had added considerably. If more was wanted Parliamentary 
supply was the only l^gal source, 
from his- Precedents were producible on both sides ; of cases where 

liorv * 

the king had raised money or troops on an emergency, and of 

cases where he had borrowed or begged money for a special 

1 1 St. T^. purpose, or had deferred the raising of money till a Parliament 

'^'^' could meet. Statutes were conclusive in this case against the 

daim of the Crown, from Magna Charta to the Petition of 

' The fint writ of Shipmoney (1654) ^^ addreesed to maritime towns, the 
•eoond (1635) ^n^ the third (1637) were sent to the whole kingdom. 



$3.] TAXATION. 281 

Right. In fact it was nnnecessaiy to go beyond the Petition Irom sta- 
of Right passed nine years before, wherein, reciting Magna 
Charta and the Statute de Tallagio non Concedendo it was 
prayed by the Houses and granted by the king that ' no man 
hereafter be compelled to make or yield any gift, loan, bene- 
volence, tax or such like chargre, without common consent by 3 ^^* ^» 

_ ' ,. , ^ "^ C. I,B. 10. 

Act of Parliament. 

St. John, one of Hampden's counsel, made in his argument Admisrion 
some bold admissions : he declined to draw any distinction be- tive power 
tween inland and maritime counties in respect of their liability oro^. 
for coast defence. He further admitted that the king was 
entrusted with the defence of the country and was judge of the 
best means for securing that defence. He concedes to the 
Crown ' that as the care and provision of the law of England 
extends in the first place to foreign defence ; and secondly, 
lays the burden upon all ; and for aught I have to say against 
it, it maketh the quantity of each man's estate the rule whereby 
this burden is to be equally proportioned upon each person ; 
so likewise hath it in the third place, made his Majesty sole 
judge of dangers from foreigners and when and how the same 
are to be prevented; and to come nearer, hath given him 
power by writ under the Great Seal of England, to command 
the inhabitants of each county to provide shipping for the 
defence of the kingdom, and may by law compel the doing 
thereof.' 

This was to admit a great deal. But St. John goes on to Its limita- 
show that while the king was judge of the policy to be pur- p^u/ 
sued in meeting dangers. Parliament was the proper instru- ^^^^ 
ment by which supplies were to be obtained. The only 
ground for dispensing with a Parliamentary grant and re- 
sorting to arbitrary taxation would be the imminence of 
danger, and Hampden's counsel had no difficulty in showing 
not only that no danger was imminent, but that no such 
imminent danger was alleged in the writ. 

Holbome carries the matter further, and limits, more closely 
than St. John had done, the discretionary powers of the 



282 THE EXECUTIVE AND LEGISLATURE IN CONFLICT. \li. 

Crown. ' If there be a storm or leak in the ship, that the 
danger be actual, it is justifiable for the master to throw out 
the goods ; but if he sees a cloud arise and out of fear of a 
storm he threw out the goods, I doubt on a jury which way 
this will go/ 
Decision The judges, by a majority of seven to five, decided in favour 
is Ze*.** ^^ ^^^ Crown, some, as Pinch and Weston, on the ground that 
the king was constrained or might be constrained by the 
necessities of the defence of the kingdom to raise money 
without waiting for a Parliament ; others, alleging the supe- 
riority of the king to the law. The opinion of these last may 
be taken in the words of Berkeley, ' the law is of itself an old 
and trusty servant of the king's : it is his instrument and 
means which he useth to govern his people by. I never 
heard nor read that Lex was Rex, but it is common and most 
true that Itex is Lex, for he is Lex loqueM^ a living, a speaking, 
an acting law.' 

In this matter of taxation, as fifty years afterwards in the case 
of the dispensing power, judges were found to maintain that for 
taking the subject's money Acts of Parliament were unneces- 
sary, as later that for imposing general rules of conduct, Acts 
of Parliament were precarious ; for the king, the source of all 
law, might if he chose, do without them or set them aside. 

The Long Parliament, by Statute i6 Car. I, c. 14, declared 

the judgment in the case of shipmoney to be contrary to law, 

and enacted the observance of the provisions of the Petition 

of Right, and the Bill of Bights enacts — 

I Will, k * That the levying money for or to the use of the Crown by 

0/2/ ' ' pretence of prerogative, without grant of Parliament, for 

longer time or in other manner than the same is or shall 

be granted, is UlegaL' 

Practical It is noticeable that throughout the controversies between 

^^4«»- ^'O'^ <^d Parliament in the seventeenth century the same 

^^^°' difficulty presents itself to such of the parties as were not 

wholly engrossed in the technicalities of the discussion. There 

must be some person or body in the State capable of acting 



§ 4-] TAXATION. 283 

promptly in cases of emergency. A Parliament if not sitting 
has to be called, and is at best an unwieldy body for the 
purpose of dealing with present and pressing difficulties. 

In the seyenteenth century the choice lay between the 
submission of such difficulties, as they arose, to Parliament, 
and the assignment of great and dangerous power to the 
Crown. And apart from the danger to liberty of entrusting 
the Crown with the powers claimed for it by its advocates 
there was a practical inconyenienoe« If a king, animated with 
the best intentions, persistently blundered in his exercise of 
power, there was no remedy short of a revolution. 

Our cabinet system is the solution of the puzzle of the 
seventeenth century: we fix responsibility upon a group of 
ministers who can be removed if they fail ; we are therefore in 
less danger of a rash exercise of power, while at the same time 
the Crown and the nation possess a body of servants who are 
bound not to shrink from responsibility if occasion should 
arise when reBponaibility must needs be incurred. 

§ 4. Influences of the Hxecutive on the Legislature. 

In the previous sections of this chapter I have described 
attempts made by the Crown to resume those functions in 
the State which had once belonged to the Crown in Council 
before Parliament grew up alongside the older institution, influence 
before the executive and legislature had become distinct ^fye'^Te- 
bodies with appropriate duties. But I must not leave this gui«tare. 
part of my subject without noting other modes by which the 
executive has endeavoured to control the legislature, not by 
interfering with its duties but by influencing its action. 

Influence of the Crown upon the Commons. 

For when the position of Parliament in the constitution 
had become defined ; when the participation of the Commons 
in the imposing of taxes and the making of laws had become 
recognised as necessary, if taxes were to be paid and laws 



284 THE EXECUTIVE AND LEGISLATUEE IN CONFLICT, [iX. 

obeyed ; when the king's part in legislation had been redaced 

to an expression of assent or dissent ; it became worth the 

while of the king and his ministers to consider how &r their 

wishes could be effected by the instramentality of Parliament, 

and in particular of the Commons. 

l>eAlixigB The modes adopted in yiew of this end may be said to 

^^^iSvL- ^^^ passed through three stages. First we have the 

tionofihe attempts of the Tudors to obtain a subservient House of 

House I 

Commons by the creation of constituencies and the manage- 
ment of elections. The first Stuarts, with the exception of 
the attempt of James to form a Court party in Parliament, 
tried methods more in accord with their high notions of 
prerogative and their contempt for constitutional forms. 
with free- They influenced debate, so &r as they tried to influence it, 
speech, ^J interference with fiieedom of speech ; but they preferred 
to dispense with Parliamentary forms and to fall back on the 
independent action of the Crown described in the earlier 
within- sections of this chapten The third stage commences with 
in^toB. ^^^ Restoration : the king could no longer venture to create 
new constituencies nor to interfere directly with freedom of 
speech in Parliament ; he addressed himself to the corruption 
of individual members, by places, by pensions, and by bribery. 
After the Revolution this method became more frequent and 
systematic as the House of Commons increased in power with 
no corresponding increase in responsibility. The art of Par- 
liamentary management, as we shall have to note shortly, 
attained its perfection in the fifty years preceding the eon- 
cession of independence to the American Colonies. 

The influence exercised by the Tudor sovereigns upon the 
House of Commons was of two kinds, the creation or restora- 
tion of constituencies designed to be under the influence of 
the Crown, and instructions general or special addressed to 
the sherifl^ or to electors conveying recommendations or com- 
mands about the elections. 
Creation of The additions made by Henry VIII to the representation 
^^^ ' of the country are free from the suspicion of any sinister 



/ 



§ 4-] INFLUENCE OP EXECUTIVB ON LEGISLATUEB, ^85 

motive. One cannot Bay the same of the twenty-two new 
membeis added in the reign of Edward VI. Fourteen of 
these were returned by seven Cornish boroughs, and from the 
number of persons represented, and the qualifications of the 
electors in the year l8i6 it may be concluded that with aU 
due allowance for changes in the fortunes of these boroughs 
they never were expected to be anything but corrupt. The 
constituencies were as follows :-^ ^ 

Bossiney, mayor and freemen chosen by the mayor • 9 

Newport, burgage tenants paying scot and lot . • 62 
Westlooe, corporation, consisting of twelve persons 

who need not reside • • .12 

Grampound, mayor, recorder, aldermen and freemen 42 

Saltash, mayor and free burgesses 38 

St. Michael's, portreeve, lord of the manor and in- 
habitants paying scot and lot 18 

Camelford, corporation being inhabitant householders 

paying scot and lot 9 

Mary added or revived fourteen boroughs, Elizabeth sixty- 
two. The clear intention of these additions was to form a 
court party in the House of Commons, and to obtain seats 
for friends of the Crown or its ministers, placemen who 
would vote as they were told but who had no local interest, 
such as would ensure their return, unless constituencies were 
made or found for them. 

The creation of new boroughs, or the revival of old ones, 
would not, however, have been of much use if the Court had 
not taken active steps to fill them with suitable representa- interfer- 
tives* This was done either by general directions to the^^oni. 
returning officers for the election of members of a certain 
character, or by express recommendations of individuals. 

A circular addressed to the sheriffi in 1553 is an illustra- 
tion of both forms of interference. It bids the sherifis give 
notice to the electoM that they should, in the first instance, 
choose ijesidents of knowledge and experience, but that/ if the 



2«6 THE EXECUTIVE AND LEGISLATUEE IN C50NPLICT. \tX, 



Cessation 
of their 
modes of 
inflnenoe, 



Privy Conncil shonld make special Teeommendation of men of 
learning and wisdom, snch direction shonld be regarded. 

Such interference with elections by the Privy Conncil or by 
individual ministers of the Crown or noblemen did not take 
place without exciting some resentment in the Commons. The 
practice of nominating courtiers or placemen could not well be 
carried out consistently with the statute of Henry V, which 
required residence as |k qualification for election. Accordingly in 
1 57 1 a bill was brought in to make valid the election of non- 
residents. The bill was supported on the ground that it would 
give to every constituency the choice of the best available 
candidates, and thus was raised the question whether a member 
represented the general interests of the whole kingdom or the 
local interests of those who returned him. The opponents 
of the bill did not merely maintain that if the requirement of 
residence was abolished local interests might suffer ; they alleged 
the risk of such interference with the representation as we 
have been discussing, the probability that candidates would 
be nominated by noblemen and courtiers and that ' lords' 
letters would bear sway ^.' The bill progressed so &r as to be 
committed, but was then dropped. 

It would not be dilSScult to collect other instances and 
illustrations of interference by the Crown or its ministers 
with freedom of election : but the wholesale creation of con* 
jstituencies ceased with the accession of James I. The addi* 
tions made in his reign to the representation were mostly by 
way of revival of constituencies which had ceased to return 
members, and were the result of the action of the House of 
Commons ordering a warrant for the issue of a writ. An 
illustration is afforded by the cases of Pontefract and Ilchester 
in the year 1620, as to which the following entry appears in 
the Commons' Journals of the report of the Committee of 
Privileges*:— 

For Pomfrett that 26 Ed. it sent bargesses which continued a 
good while after. That by reason of the bvons war it grew poor. 

' D*£wes, JouxiuJ, z68. * Com. Jour. ii. 576. 



f 4.] INFLUENCE OP EXECUTIVE ON LEGISLATUEE, 287 

That 10 Hen. YI, a return was made they could not send burgesses 
by reason of poverty. 

4th Jac. the king granted all their former liberties and 
customs. 

That the Committee thinketh it to stand both with law and 
justice that a writ should go for choice of burgesses. 

For Hchester : — till Hen. V time sent burgesses. Upon question, 
Pomfrett to send burgesses. Upon like question, Ilchester to send 
burgesses, and writs for both. 

This shows that the right of sending members to Parlia-* 
ment began to be prized as the Commons grew more inde- 
pendent and the general interest in politics more keen, and 
serreB to explain how it was that the Stuart kings first had 
lecoorBe to other measures for influencing Parliament. ByTbeUnder^ 
the advice of Bacon, James I endeavoured to form a Court 
party in the House, not merely of placemen or nominated 
members, but of aspirants for Court favour, answering to the 
'king's firiends' of George III. These persons were called 
Undertakers, and were the forerunners of a kind of royal 
influence in Parliament which during the latter part of the 
eighteenth century was used with deeply injurious effect upon 
the fortunes of the country. 

But attempts to influence the House of Commons were not 
very congenial to kings who maintained, as James maintained^ 
that the privileges of the House were ' derived from the grace 
and permission of his ancestors and himself' and might be 
'retrenched' at his pleasure: or who, like Charles I, could, 

w 

through the mouth of his ministers, threaten the House that 
if they trenched on his prerogatives they might ' bring him 
o<iit of love with Parliaments ^.' 

Interference with freedom of debate, such as has been ParliA- 
spoken of under the head of Parliamentary privilege, and manage. 
invasion of the province of Parliament by independent legisla-* B«rto(rft- 
tion and taxation, were the rough methods employed by **<»»• 
Charles, and it is not until after the Restoration that we find 
a revival of attempts to influence members. 

^ Gazdiner, Hist, of England, ri. 1 10. 



288 THE EXECUrrVB AND LEGISLATUBE IN CONFLICT. [iX. 

Charles II ventured only upon one addition to the con- 
stituencies, that of Newark, hj royal charter, an exercise of 
the prerogative which did not pass unquestioned by the 
Commons \ during his reign, and the ill success of the attempts 
of James II to dispense with the forms of the constitution 
made it clear that the House of Commons, if it was to be made 
» instrnment for canying out the poUcy of the Crown and its 
ministers, must be dealt with otherwise than by tampering 
with the representation of the country in Parliament, or by 
interference with freedom of debate. 
InoreMed ^^ House of Commons, having obtained complete control 
diflBcuitiea ^^^^ supplies, and over the existence of the standing army, 
tive. had become the chief power in the State. In order to carry 

on the business of government it was necessary that the 
ministers of the Crown should have the continuous support 
of a majority of that House. But such continuous support 
was not easy to secure. Throughout the reigns of William 
and of Anne party spirit was, on the whole, sufficiently 
vehement to supply to some extent the want of party 
discipline. Tet the corruption of members by pkces and 
bribes was common, and the management of elections through 
the returning officers was an important object of ministerial 
care^ 
Systematio But it was not till after the accession of the Hanoverian 
of F^fr^ kings that FarUamentaiy management became a system 
ment in under the hands of Walpole. He realised to the full the 

i8tn cen- ^ .... 

tttry. importance of a working majority in the Commons, and the 

difficulties in keeping it together. The difficulties were serioua 
The engrossing political issues of the seventeenth century 
were in a great measure laid to rest, and there was not ex- 

* Com. Jonmftls, iz. 403. The city and ooanty of Dnrliam were enfiran* 
ohised by 35 Car. II, c. 9. 

' In the Wentworth Correcpondenoe, p. 135, the defeat of the Whigfi in 
1 7 10 is attributed to an electioneering blunder. They had thought there 
would be no election till the next year, * so had directed her Majesty'i ehoica 
of sheriffs, almost throughout England, of Tories ; their friends they kept off 
till next year, when they thought they should have uee qf them in the electitnU 
of "Parliament men* . 



. §4.] mFLXTBKCB OF EXECUTIVE ON LEGISLATURE. 289 

eitement enongh in politics to create genuine party diviflions. 
The House debated with dosed doors, and its members were 
bee from external criticism. The constituencies in many 
CBsea were so small or so cormpt as to care Uttle what their 
members said or did. In the absence of any external control 
OTer the conduct of members, and of any real politicid interests 
or iflsnes to keep parties together; in tiie demoralisation of How it wm 

DOHBl bl O 

politics, which was partly due to the moral collapse of the 
Restoration, partly to the risks and tmcertainties of political 
life during the past forty years, it was not easy for Walpole 
to get a majority to snpport his ministry out of mere public 
spirit. Nor did he tiy to do so. He accepted the ccmdition 
of pablie morality. He kept his majority together by the 
simple process of bargain and sale. But that which had been 
done intermittently during previous reigns, he did in a busi- 
nesslike and systematic way. Bribery is not easUy proved 
where it is to the interest of all parties concerned to keep the 
secret ; but Walpole's hints to his successor, Henry Pelham, as 
to the best mode of keeping together the rank and file of the 
party, are quite sufficient to indicate the mode in which the 
House of Commons was 'managed' between the years 1721 
and 1742. The process of management continued under 
Henry Pelham and his brother, the Duke of Newcastle, until 
C^ige III took into his own hands the business <^ corrupt 
tion. To trace the gradual emancipation of the House of 
Commons from such influences would be to write the political 
history of England from the death of Henry Pelham to the 
B«form Bin of i83!:(. 

The elder William Pitt was the first to prove to the political How it 
managers of the eighteenth century that there was a public 
outside the constituencies capable of taking a generous interest 
in political matters. The Rockingham Whigs were the first 
to show that common opnions on the conduct of affidrs of 
state may bind a party as wdl as ties of relationship or the 
prospect of mutual gain* One antidote for the political cor- 
ruption of the last century was to be found in the growth of 

u 



290 THE EXECUnVB AND LEGISLATURE IN CONFLICT. [iX, 

genuine political interests thronghont the countij. Such 
interests would diminish the necessity for giving bribes and 
the inclination to receive them : bat the publicity of debate 
and the reform of the representative system could alone 
fomish a real security that members of the House of Commons 
would attend to the interests of their country rather than 
to their own. When members become responsible to popular 
constituencies, and when the constituencies have the means 
of knowing what their members say, and how they vote, a 
minister cannot hope to secure support by offering personal 
advantages to individuals. But I need not carry this matter 
fiirther. Nevertheless it is necessary to speak shortly of the 
various inducements offered to members, and the process by 
which Parliamentary management was effected. 

Mode9 of infittendng members. 

OffioNM and With official disqualifications I have abready dealt in de- 
^""^°** scribing the persons who may be elected to serve in the House 
of Commons ; but historically such disqualifications fidl into 
two groups. Those created during the greater part of the 
last century were designed to secure the independence of 
Parliament: the more modern disqualifications are for the 
most part imposed to secure the undivided attention of officials 
to the business of their departments, and the advantage of 
a permanent civil service unaffected by changes of ministiy 
or by considerations of party politics. 

The Acts 5 Will. & Mary, c. 7, and iii & 13 Will. Ill, c 10, 

excluded Collectors of Excise duties and of Customs. 6 Anne 

c. 7 (41 ii^ revised statutes) imposes the disqualifications de- 

ul»fo,p. 74. scribed in an earlier chapter ; and i Oeo. I, c. 56, disqualified 

pensioners for terms of years. 

15 Geo. II, c. 22, the place bill of 1742, the one reform 
effected by those who ejected Walpole from office, excluded 
the holders of some two hundred offices from the House of 
Commons. 
, 0,2 Geo. Ill, c. 82, abolished a number of places about court. 



§ 4.] INFLUENCE OP EXECUTIVE ON LEGISLATURE. 291 

which had previously been tenable with seats in the House of 
Commons, and provided that if revived they should be netP 
oflSces within the meaning of the Act of Anne. 

This may be regarded as the last of the statutes which, in 
creating official disqualifications, had in view the independence 
of the House of Commons. The amount of influence accru- 
ing to the Crown from the places which were thus abolished, 
or made to disqualify, may be collected from Burke's speech 
on Economical Reform, made with a view to the passing of 
the last of the Acts I have mentioned. It is not difficult to 
see the use to which such places were put when the reform of 
the king's household was thwarted because ^ the turnspit in 
the king's kitchen was a member of Parliament ' ; when the 
Board of Trade could be described as 'a sort of temperate bed 
of influence : a sort of gently ripening hot-house where eight 
members of Parliament receive salaries of a thousand a year, for 
a certain given time, in order to mature, at a proper season, a 
claim to two thousand granted for doing less, and on the credit 
of having toiled so long in that inferior laborious department.' 

Another form of corruption, applied chiefly to commercial Govern- 
members, was the grant of a government contract, such as to S^^.^"* 
supply the navy with beef or the army with doth. 

Such a contract was given, not for the advantage of the 
branch of the service to be supplied, but with a view to the 
parliamentary support of the contractor. The service was iU 
supplied. The constituents did not obtain the unbiassed 
attention of their member to local or national interests, and 
everybody was injured by the transaction, except the member 
who made money out of the contract, and the minister who 
secured the member's vote ^. 

This practice was brought to an end by the disqualification 
of holders of government contracts by 22 Geo. Ill, c. 45. 

A more expensive form of corruption was practised in the Sh«ret in 
latter part of the eighteenth century, during the ministries of ***'**' 
Bute, Grafton and North. It consisted in assigning to friends 

* ParL Hist. zz. 133-129. 
V 7, 



293 THE BXECUnVB AND LEOISLATUEB IN CONFLICT. [iX. 

and sapporters of the minister duuree in government loans 
and lotteries. By this means the oonntry was nmde to borrow 
money on terms considerably above the market price, and, in 
the case of a loan brooght ont by Lord North, sostained a loss 
of nearly a million upon the transaction. The pnddoe was 
abandoned by Fitt, who, from the time that he became minister . 
in 1784, when he wanted to raise money by loan, invited 
offers which were sent by him sealed by the persons anxiona 
to take up the loan. These tenders were opened in the 
presence of those who had made them, and the best offer was 
taken ^ 

Pftyment But all these advantages which might aoeme to the sap- 
porters of a ministry were occasional and nnsystematic as 
compared with the direct method of bribery which prevailed 
from the reign of Charles II to tiie end of the ministry of 
Lord North in 1782. 

Much has been said and many authorities cited as to the 
con-nption of Parliaments between these periods. Its prevar 
lence during the reigns of Charles II and William III is 
attested by Burnet ' and Macaulay ' . Individual cases of the 
receipt of money by members of either House in consideration 
of support givw to ministers are instanced by Sir E. May ^. 
But the systematic maintenance of a ministerial majority 
by the regular payment of bribes seems to have been the 

The syitem invention of Walpole. The evidence is scanty, but there is 
' significance in Walpole's advice to Henry Pelham, advioe 
given by a man who had retired from office to the man 
whom he desired to succeed him in power. * I think 
it needless to suggest to you tibe necessity of forming within 
yourselves your own scheme. Tau mmt h4 underriood by ihow 
fou are to depend ttpon^ and if it isjpouible they mu^t be indneed 
to keep their ou?n secret ^/ Such advice explains the require^ 
mant of leaders of the House of Commons, when the Prime 



* See Mftj, Constitutional HiBtory, 335, and the aothoritiee tbere 

* Hist, of his Own Time, ii. 144. * Hist, of England, iii. 541. 

* Constitutional Hist, of England, i. 31a. * Coze*s Pelham, 193. 



$ 4.] INPLUBKCB OP EXECUTIVE ON LBOISLATURB. 293 

Minister was a member of the House of Lords, that they 
should be 'authorised to talk to members of the House of 
Commons on their several claims and pretensions.' It 
explains also the fluctuations in the expenditure of the 
secret service money in correspondence with the Parlia^ 
mentary needs of government. 

Oeorge III, who liked to be his own minister, paid great Of George 
attention to this department of ministerial duty. His corre- 
spondence with Lord North affords more than one illustration 
of the use made of the secret service money and of the King's 
savings out of the civil list, to corrupt members and con- 
stituencies. 

In particular, when North retired in 178:} the King writes^: 
* I must express my astonishment at the quarterly accounts of 
the secret service being only made up to the 5th of April, 
1780. No business ought ever to be the excuse for not 
doing that.' 

* I shall make out the list paid by Mr. Robinson to Peers, PAymenti 
and shall give it to the First Lord of the Treasury ; but I of Lords 
cannot answer whether under the idea of inflaence there wiU ^S^' 

Dions. 

not be a refusal to continue them. Those to members of the 
House of Commons cannot be given ; they may apply if they 
please to Lord Bockingham, but by what he has said I have 
not the smallest doubt he will refuse .to bring their appli- 
cations as well as those of any new solicitors in that House.' 

It would seem from this that such members of either 
House as desired to be retained in the service of the ministry 
made application to the minister, that he communicated their 
wishes to the King, received authority to expend the necessaiy 
sums of money, made the payments, and accounted for them 
in a book which should have been sent quarterly to the King. 
Lord North apologises for the delay ' with a heart full of the 
deepest affliction.' 

*The secret service list was always ready after every 
quarter, so that no delay is imputable to him. Mr. Bobinson, 

^ Correspondence of Geoi^ III with Lord Korth, vol. ii. 421-425. 



294 THE EXECUTIVE AND LEGISLATTJRE IN CONPLICT. [iT* 

whose list is of a nicer nature^ never omitted entering^ eveiy 
sum he paid the moment he paid it, so that eyery article of 
his accotuit is kept in perfect order/ 

But other forms of corruption appear in this winding np 
of business between the King and a minister, who perhaps 
was more nearly after his own heart than any others who 
served him. 
Pensioiu. Secret pensions were paid to members in breach of the 
law ; and in prospect of the advent to oiEce of a minister who 
would not connive at such proceedings, these pensions were 
set down in the names of the wives of such as were married. 
Poor George Selwyn, who was a bachelor, had to for^^ his 
pension altogether. < He must look to better days,' said the 
King. 
Bribeiy at But the most serious item of expenditure revealed in this part 
e ec onp. ^£ ^^^ correspondence was the outlay in bribery at elections. 
* If Lord North remembers correctly, the last general election 
cost near ^50,000 to the Crown, beyond which expense there 
was a pension of jS'icxdo a year to Lord Montacute and ^^500 
a year to Mr. Selwyn for their interest at Midhurst and 
Ludgershall.' On bye-elections alone the King had spent 
jf*! 3,000 in three years. But Lord North says of the 
members who were assisted to come into Parliament that 
' they all behaved with very steady attachment to the end.' 
Bemovalof A cheaper mode of securing the support of members who 
fi^^Com- ^^^'^ commissions in the army and navy was to deprive them 
missioxis. of their commissions if they voted against the government. 
Ante, I have already alluded to this infringement of the privilege 
of freedom of debate, which was, as Burke says, discoun- 
tenanced and altogether abolished in Lord Rockingham's 
short administration in i7^5* 

Honours Besides these grosser forms of corruption, and in substitution 

nUies.^" for them, as direct bribery and intimidation of members ceased, 

honours and dignities were held out as inducements to rich men 

or large landowners to support the government. At a time 



§ 4.] INFLUBNCB OF EXECUTIVE ON LEGISLATUBB. 295 

when many borooghB were, bo far as representation went, 
articles of property, the votes which an owner of boroughs 
could command might be placed at the disposal of a minister 
in consideration of a peerage, or an advancement of rank in 
the peerage. By this means Pitt, between the years 1784 
and 1 80 1, was able not merely to strengthen his position in 
the House of Commons, but to change in great measure the 
political colonr of the House of Lords, by the creation or 
promotion of 140 peers. 

Purchase or corruption of coMtituencies. 

All these modes of influencing members of the House of 
Commons were rendered possible only by the condition of the 
representation. The counties were independent, but were Purohaneof 
not likely to look beyond the county &milies, and the cost of ^^ ' 
a contest was enormous. In many boroughs there were no 
electors capable of expressing an opinion ; where there was such 
an electorate its opinion was often determinable at a known 
price. Thus a seat in Parliament for a borough was in most Brib^y of 
cases a matter of bargain and sale ; only in some cases the ents. 
seat was pnrchaseable without any reference to electors, in 
other cases the electors made their own terms. The two parties 
in the state competed with one another for the possession of 
such seats as were to be bought out and out, and a man who 
wished to get into the House of Commons, and who had no 
such local interest as would procure him a seat for a countyi 
could not easily obtain a seat except as nominee of the 
govemment or of the opposition, or by the favour of an owner 
of boroughs, or by purchasing a seat for himself. 

The ministers had resources which enabled them to compete 
successfully with other purchasers of seats, and the domestic 
economy of George III was, as appears above, not without 
reference to electioneering interests. We are not here con- 
cerned with the defects of the representative system before 
J 832, except in so far as it rendered the House of Commons 
more susceptible to the influence of the Crown and its ministers. 



( 



296 THE EXECJUnVE AND LBGISLATUEB IN CONFLICT. [iX.* 

The poBsibility of such inflaeaoe may be eaid to hftve oeaaed 
with the Reform Bill of 1832. The modem eonstitaency 
exerciseB a far moro potent control over the actions of its 
member than any ministerial influence. The independence 
of members is no lon^r threatened by the Crown; and 
if we have any reason to fear lest votes should not be given 
strictly on ihe merits of a question before the House, the fear 
is rather lest the rote should be determined by the influence 
of a group of local busybodies, than by any anticipation of 
emolument or &vour to be bestowed by the Crown. 

Influence (yf the Crown, npan the Lords* 

So far we have spoken of the influence of the Crown on the 

House of Commons. Its influence on the House of Lords has 

i) ExprM- been of two kinds. Firstly ^ the Lords are from their position 



Bion 



ro^ and mode of life more easily affected by any expression of the 

^ ^' personal wishes of the Crown. On two notable occasions such 

an expression of the royal wishes has determined the action of 

the House of Lords on an important question. 

In <»Be of When, in December i78<i, Pox's India Bill had passed the 

Fox's Indis ... 

Bill ; Commons, and was under discussion in the House of Lords, 
George III had an interview with Lord Temple, afterwards 
Marquis of Buckingham, and empowered Temple to say 
that, * whoever voted for the India Bill was not only not his 
fiiend, but would be considered by him as his enemy ; and if 
these words were not strong enough, Earl Temple might use 
whatever words he might deem stronger and more to the 
purpose/ 

This statement was written out in the king's own hand. 
It was shown by Temple to peers who were wavering in their 
opinion of the merits of the bill, and to peers who were apt to 
be guided in their political conduct by an intimation of the 
king's wishes. The result was that the bill was thrown out 
on a motion that it should be committed. 

of Reform A like influence was brought to bear upon the House of 
Lords in order to bring about the passing of the Reform Bill 



§ 4-] INPLTJBNCB OP EXECUTIVE ON LEGISLATUBB. 297 

of 1839. The first Reform Bill had &iled on an adverse 
reBolntion, carried as a preliminary to its being committed in 
the Hoase of Commons. The second Beform Bill had been 
thrown out on the second reading in the House of Lord& 
The third Beform Bill, after passing the House of Commons 
and the second reading in the House of Lords, was in course 
of being so handled in committee as to defeat the objects of 
the ministry who had introduced it. Lord Grey and his 
colleagues resigned. A Tory ministry which Lord Lyndhurst 
and the Duke of Wellington endeavoured to form was made 
impossible by the refusal of Peel to be a party to any measure 
of Beform however moderate. Lord Grey was recalled, but 
the attitude of the Peers remained hostile. It seemed that 
the course which Harley and Bolingbroke had adopted would 
need repetition, and that a creation of peers, on a greater 
scale than was required in 1712, would become necessary. The 
King reluctantly assented to such a creation, but, at the same 
time, he had recourse to the policy of George III. His 
secretary was instructed to inform the Duke of Wellington 
that the matter might be settled by ' a declaration in the 
House of Lords, from a sufficient number of peers, that 
they have come to the resolution of dropping their further 
opposition to the Beform BilL' This communication caused 
Wellington, and with him the leaders of the Tory opposition 
in the House of Lords, to abstain fiom any further attack 
upon the bill, and it speedily became law. 

The creation of peers by the Crown in order to bring about (a) Power 

.1 "^ • I'll! of creating 

the passing of a measure is a power which has only once peers. 
been exercised. 

In 1 71 9 it was necessary, in order to avert opposition to 
the Peace of Utrecht, that the Whigs should cease to be in a 
majority in the House of Lords. The matter was promptly 
dealt with by the Queen and her advisers ; twelve new peers 
were created, and a Tory majority secured. The excitement 
caused by this exercise of the prerogative seems not to have 
extended much beyond the limits of society, nor to have met 



298 THE BXECUTIVB AND LBGISLATUEE IN CONFLICT. 

with much severer comment than the jest of Wharton, who 
asked the twelve new peers, as they were about to take part 
in a division immediately after taking their seats, ^whether 
thej intended to vote singly or by their foreman/ 
FoMible Yet the existence of this prerogative is a cmions feature in 
the use of our constitution, an instance of a dormant power, which, if 
IB power. QXQf^^gQ j^ might produce strange results. The Queen might, 
without exceeding her legal rights, double or treble the number 
of the House of Lords. She might do this, and might do 
so by the introduction of persons whom she selected for no 
other reason than personal liking or caprice. This prerogative 
is one which we are in the habit of regarding as a more 
practical safeguard of the constitution than the royal veto 
on legislation, because &om time to time the House of Lords 
delays measures which a considerable number of persons 
desire 'to be passed, and the ultimate resort to a creation 
of peers is then regarded with satisfiEMstion by those who 
favour the measure delayed. But the power of packing one 
of the Houses of Parliament is in reality far more formidable, 
because more lasting in its operation if exercised, than 
the power of using the veto. The will of an individual cannot 
long hold out against the expressed intentions of a nation, but 
the course of legislation and policy might insensibly be altered 
in many ways by the alteration in character of one of the 
two legislative chambers. 



CHAPTER X. 



THE raOH COURT OF PARLIAMENT. 

The legislatiye power of Parliament is perhaps the most FonctionB 
conspicuous feature of our constitution to any one who seeks to ment not 
compare the disposition of forces in diiSerent political societies, ^-^g®^' 
What is understood, dsewh^e than in England, by a consti- 
tutional govemment, is a government the ordinary working 
of which is regulated by a written constitution, a constitution 
which cannot be altered by ordinary legislative procedure, 
which needs for its alteration some abnormal process for ob- 
taining the expression of national consent. 

But our Parliament can make laws protecting wild birds or 
shell-fish, and with the same procedure give political power to 
two millions of citizens, and redistribute it among new consti- 
tuencies : by the same procedure, with the preliminary of a 
resolution in committee, it could disestablish the State Church. 
It is littie wonder then that with this constant process and 
possibility of change before our eyes, we lose sight of the 
other functions of Parliament in the contemplation of its 
leg^lative power. 

But, as I had occasion to note in speaking of the Royal but ja- 
Proclamation for the summons of Parliament, the Queen calls 
a Parliament with no ostensible purpose of legislation but that 
she may ' have the advice of her people.' And Parliament 
discharges various and important functions answering to the 



300 THE HIGH COUET OP PAELIAMENT. [x. 

work of the ancient Conncil of the Crown. In dealing with 
the duties which the Houses discharge as constituting the 
High Court of Parliament, we must be careful to distinguish 
the direct from the indirect, those which are based on rules of 
law, and those which rest on use or convention. 

§ I. TAe direct and indirect judicial potoer cf the Sou9e%. 

iv. Inst. Lord Coke says boldly that, * the Lords in their House have 

c. 1. p. 33. p^^gj. Qf judicature, and the Commons in their House have 
power of judicature, and both Houses together have power of 
judicature.' But we must strictly limit the sense in which 
judicial attributes are thus assigned to the two Houses severally 
and jointly. 

Each has, as we have seen, a jurisdiction over its own 
members and over the general public in respect of contempt 
against itsel£ Each has certain powers of a judicial character 
in dealing with the constitution of its own body and the right 
of persons who daim to be members of that body. The Lords 
can try their own members if charged with treason or felony. 
They also constitute a final court of appeal for the United 
Kingdom. Acting jointly, the Lords can try and sentence 
a criminal impeached by the Commons, or a Bill of Attainder 
can be passed by both Houses and presented to the Crown. 

Besides these existing and undoubted powers, it must not 

be forgotten that each House has in past times claimed a 

further jurisdiction as a court of first instance, 

Origiiua The House of Lords has endeavoured to exercise a jurisdic- 

clamed by *^^^ ^ matters of great importance, where the remedy given 

the Lords; by the Common Law Courts might be inadequate or difficult 

to procure. It was in virtue of this claim that upon reference 

&om the Crown they undertook to try the dispute between 

Skinner and the East India Company in the year 1667. The 

details of the quarrel between the two Houses, which was 

occasioned by this pretension of the Lords, are unnecessary for 

my present purpose. It is enough to say that the Lords gave 



§ I.] CLAIMS TO ORIGINAL JUBISDICTION. 301 

judgment against the Company and in favour of Skinner for 
j^5ooo, and sentenced the deputy governor of the Company, 
Sir Samuel Bamardiston, to pay a fine of ^300, and to re- 
main in custody till it was paid, for a breach of privilege in 
petitioning the Commons against their action in the matter ; 
that they ultimately consented to erase both judgments from 
their journals, and thereby admitted that they had no such 
jurisdiction as a court of first instance, and that to petition 
the Commons agaiust such an exercise of jurisdiction was a 
tail exercise of the general right of the subject to petition. 

The House of Commons too has eet up a jurisdiction as a and by the 
eonrt of first instance to try political ofienoes. Numerous 
cases are to be found in the Journals of the House during the 
seventeenth century of the exercise of such a supposed juris- 
diction, but perhaps the most conspicuous is also happily the 
last. It occurred in 172K1, when the House by resolution com- 
mitted to Newgate a prisoner named Mist for the publication of 
a journal which contained expressions of a hope for the restora- 
tion of the Stuarts. There was no suggestion of a breach of 
privilege by Mist, and the House dealt with his conduct as 
constituting a purely political offence. Although the House 
never repeated Book an assumption of judicial power, yet in 
the eighteenth centuiy, when privilege was in other respects 
extended to the detriment of free discussion, both Houses 
did take upon themselves to determine questions of private 
right arising between their memben' servants and the out- 
side pubUc^ 

The attempted assumption by the Lords of a jurisdiction in Thegroond 
cases of great importance in 1667 was probably a result of olAimt. 
the disappearance of the Privy Council jurisdiction, which, in 
the court of Star Chamber, had from time to time been exer- 
cised in a salutary manner for the bringing to justice of great 
offenders. The extensions of privil^e to matters outside its 
proper limits were the acts of two irresponsible and not 
very public-spirited bodies at a time in our history when the 

^ See insUnoeB cited in Pemberton on Priyilege, p. 87. 



302 THE HIGH COTJBT OP PAELIAMBNT. [X. 

privileges and emoluments of power were more regarded than 
its duties. I do not propose to deal with these disputed or 
excessive exercises of jurisdiction, nor is it neoessaiy to touch 
again upon the undoubted rights of thcf Houses to maintain 
their dignity bj committal for contempt, and to see that 
unqualified persons do not take part in their business or de- 
liberations. Nor again will I here anticipate what I shall 
have to say hereafter in dealing with Courts of Criminal 
jurisdiction concerning the right of a peer to be tried by 
his peers. 
Forms of But the criminal jurisdiction exercised by Parliament 
j^jj^®" through the process of impeachment is a distinct feature of 
its attributes as a court. The appellate jurisdiction of the 
House of Lords is doubtless a survival of a portion of the 
jurisdiction of the Curia Regis, and of the time when a session 
of Parliament was not easily distingfuished firom. a session of 
the Magnum Concilium. The practice of petitioning Parlia- 
ment dates from a time when Parliament might be expected 
to attend to and remedy individual cases of hardship. And 
another judicial duty is thrown upon Parliament by the re- 
movability of certain officers of the executive upon address 
from both Houses to the Crown. These are the legal duties 
of Parliament as a high court. Then we come to those which 
rest on use and convention, the practice of inquiring into the 
conduct of individuals or of departments by committee of 
either House ; of determining, by votes of censure or adverse 
decisions, on important subjects^ that the executive has no 
longer the confidence of the country. 

§ 2, Impeachment. 

Origin The practice of impeachment by the Commons at the bar of 

pnK^oe. ^6 Lords dates horn, the reign of Edward III. There seems 

no ground for regarding it as a development of the system of 

Appeals in Parliament by which private accusers endeavoured 

to get a trial before Parliament of the person whom they 



§ a,] IMPEAOHMBNT. 303 

cbai^g^ with an offence ^« Snch a court, if it were prepared to 
act at all, might create the offence, and the penalty in the 
conrse of its judicial proceeding, and such appeals were for- 
bidden by I Hen. IV, c. 14. They revive in an altered form 
in the Acts of Attainder, by which in the latter part of the 
fifteenth and throughout the sixteenth century persons who 
had played for a high stake in politics and lost it, or who, by 
no fault of their own, chanced to be on the unpopular side 
were hurried to death with no form of trial. 

Impeachment was one of the various forms in which the 
Commons tried to obtain control over the conduct of the 
ministers of the Crown, and perhaps the practical object at which 
they aimed, and which they, to a certain extent, attained, 
is well illustrated by the fact that out of fifty-four impeach- 
ments which have taken place since the year 1621, nineteen 
took place in the first three years of the Long Parliament. As 
soon as the House of Commons became able so to control and 
review the conduct of ministers as to make it impossible for 
them to conduct busincfls without a Parliamentary majority, 
impeachment lost its value and fell into disuse. 

As only two cases, those of Warren Hastings and Lord 
Melville, have occurred in the last hundred years, and none 
for the last eighty, the law upon this subject can hardly be 
said to have a practical interest. It may be well, however, to 
summarise the procedure of an impeachment, and to note the 
constitutional questions that have from time to time arisen in 
respect of it. 

The first stage in the proceedings is to induce the House of Motion for 
Commons to take action, and this is done by a member jq^^/* 
charging the accused person with high crimes and misde- 
meanours and moving that he be impeached. 

If this motion is carried, the member at whose instance it 
was carried goes to the bar of the House of Lords and im- 
peaches the accused ' in the name of the Commons of the 

* Mr. Jiutioe Stephen, Hist, of Criminal Iaw, yoI. i. p. 154, appears to hold 
tihit Tiew, But the two modes of prooednre are in fact distinot. 



S04 



THE HIGH COURT OF PAELIAMBNT. 



[X. 



triftl: 



verdict: 



ArtieleBof United Eingdom.' A Committee of tbe House of Commons 

m«^: 10 then appointed to draw op articles of impeachment, and 

these, when drawn, are delivered to the Honse of Lords. Thej 

are also delivered to the person accused, who may, if he pleasesi 

answer them. 

If the accused is a peer he is taken into costody, for the 
purposes of the trial, bj order of the House of Lords ; if a 
commoner, by the serjeant-at-arms, who delivers him into the 
charge of the usher of the Black Bod. The Commons appoint 
managers to conduct their ease, and the trial prooeeds in 
Westminster Hall. The forms of a criminal trial are followed, 
the Lords sitting as judges, the Lord High Steward presiding 
if a peer is on his trial, the Lord Chancellor or Speaker of the 
House of Lords in the case of a commoner. 

At the conclusion of the case the question of ' guilty ' or 
'not guilty' is put to each peer, beginning with the junior 
baron, on each of the articles of impeaehment. Each answers 
in turn, standing, uncovered, with his right hand on his breast^ 
'guilty,' or 'not guilty/ 'upon my h<mour.' The numbers 
are ascertained, and the decision of the House announced by 
the Lord High Steward to the House and to the accused. 

K a verdict of guilty is found by a mqority of the Lorda, it 
still rests with the Commons to determine whether this verdiet 
shall be proceeded upon. The Lords are not entitled to pro- 
nounce sentence until the Commons demand it. 

When the Lords have determined upon the sentenoe to be 
given, they send a message to the Commons that thay are 
ready to proceed upon the impeachment. It is still open to 
the accused person to offer matters in arrest of judgment^ and 
for this purpose the managers attend the House of Lords, 
and the accused is brought to the bar. llien the Speaker of 
the House of Commons demands judgment, and it ia pro- 
nounced by the Lord who presided at the tiiaL 

The execution of the sentenoe pronounced by the Lorcla is 
like the sentence of any other criminal court, dependent upon 
the pleasure of the Crown. Although an ordinary p roa ec ttti oa 



sentenoe. 



Exeoation 
of sentenoe. 



$ 2.] IMPEACHMENT, 305 

is at the snit of the Crown, whereas an impeachment is at the 
suit of the Commons, the Crown is not thereby ousted of its 
prerogative of pardon. It can pardon a person condemned 
npon an impeachment, or remit a part of the sentence, and 
has exercised this prerogative in various cases. 

There are some points which have arisen in cases of im- 
peachment, and which, after some controversy, appear to be 
settled by costom or statute :-^ 

I. It was at one time questioned whether a conmioner could Case of 
be impeached for anything but a misdemeanour ; and it was 
maintained that he cannot be impeached for a capital offence. 
This view prevailed in 1681 in the case of Fitzhariis, whom 

1 

the Commons impeached for high treason, at a time when he 
was being proceeded against for the same act at common law. 
The Lords refused to proceed with the impeachment, and 
Fitzharris was tried on indictment at common law, but the 
Commons protested against this action of the Lords, and in 
subsequent cases the objection was not raised, and the Lords 
resolved that the impeachment of a commoner for a capital 
offence should be proceeded with. 

a. Another question has arisen as to the right of the person Case of 
impeached to plead a pardon under the Oreat Seal in bar of Danby. 
the impeachment. This was done in the case of Lord Danby 
in the year 1679, under protest firom the Commons. It was 
indeed open to grave objection on constitutional grounds, inas- 
much as it made the Crown directly and personally responsible 
for the very same act which the Commons had made matter 
of impeachment. 

The question was set at rest by a clause in the Act of Settle* 
ment to the effect that * no pardon under the Great Seal of 
England be pleadable to an impeachment by the Commons in la & i.^i 
Pariiamenf "^^f^' 

3. The effect of a prorogation and of a dissolution of Par- Effect of 
Hament upon proceedings in an impeachment has been dif- §^[^^ 
ferently regarded at different times. Contrary resolutions have ^iMolution. 
been passed by the House of Lords on these points, but the 



906 THE mOH COUBT OF PABLIAMENT. [X. 

law may be stated ae follows : — ^Proceedings in the Hoose of 
Loids on an impeaehmeni are nnaflfected bj a piorogation <»* 
a diflBolution^ and this has been held without qoestion onee 
Wanen Hastings' case in 1786. Bat to aToid all difficulty 
366eojn, with legaid to the proceedings of the House of Commons, an 
45GM.III, ^^ ^^'^ heen passed in each df the last two cases of impeach- 
^ '^5- ment piOYiding thai they shall not be discontanned by proro- 
gation or disBolntion of Pailiament. 
The righto 4. As regards the position of the bishops during the course 
l^ahapB. oFan impeachment, the same difficnlty has arisen as in the case 
of the trial of a peer. The difficulty tons on the title of the 
bishop to his seat in the House of Lords, and on the quesiiim 
Amte^ of ^ ennobled blood/ 

The practice is howeyer settled by custom and resolation of 
the Hoose. The Lords haye resolyed * that the Lords spiritual 
13 I^xds J. hsYB a light to stay and sit in Court in capital cases^ till the 
Court proceed to the yote of guilty or not guilty.' And by 
custom the bishops sit in the House during the trial and yote 
on any incidental questions that may arise, but withdiaw befoie 
judgment is giyen, entering a jMX>te8t 'saying to themselyes 
and their successors all such rights in judicature as they have 
by law, and by right ought to haye.' 
Aotoof I pass oyer those acts, in form legislatiye, in substance 

judicial, which we know as acts of attainder or of pains and 
penalties. An Act of Parliament can, as we know, do anything. 
It can make that an offence which was not when done an offence 
against any mristing law; it can assign to the offender, so 
created, a punishment which no court could inflict. The pro- 
cedure is legislatiye and, as such, differs in no respect fiom 
legislation on any other matter of public importance. 



§ 3* -^J^p^tt^te Jurisdiction cf the Home of Lords. 

To discuss the history of the appellate jurisdiction of the 
House of Lords would lead us fitf into legal and parliamentary 
antiquities. If one may yentnre upon a general statement 



I 



.53-] . APPELLATE JUEISDICTION. 307 

'4ihe process of its attainment may be described as follows. 
After tlie three Common Law Conrts had been parted firom Besidaary 
the Curia Begu and had acquired distinct jurisdiction in cases power of 
concerning the king's interest, or the interest of revenue, or in ^^^"'• 
suits betweoi subject and subject, there yet remained in the 
king a residuaiy judicial power. This power was called into 
play where the Courts were not strong enough to do justice, 
or were deficient in rules applicable to the case at issue, 
or were alleged to have decided wrongly. The exercise Punish- 
of jurisdiction in cases where, from the greatness of the g^ea^ 
I offender or the importance of the issue, it was thought that v^*^^"il 

the Courts could not do adequate justice, seems to have 
assumed various forms. Such cases were dealt with by the 
Crown in Parliament, the Crown in Chancery, and the Crown 
in Council. As Parliament became more distinctly a law- 
making and tax-granting body, cases of this nature, when 
brought before it, assumed a political aspect. Appeals in 
Parliament were forbidden in i Hen. IV, and so &r as this 
jurisdiction survived in Parliament at all it survived in the 
> form of acts of attainder and private or personal acts. The 

Chancellor too, as his jurisdiction took shape, eliminated 
cases of this character, and it fell wholly into the hands of the 
Council. And the Council or the Star Chamber, as em- 
ployed by Henry VII, ' brought down punishments on the 
heads of the great, when it was difficult to find a jury which 
would not be hindered by fear or affection from bringing 
in a verdict against them even if it could be supported by 
the strongest evidence ^Z 

The exercise of jurisdiction in cases where the Courts were Common 
unable to provide rules suitable to the matter in hand passed supple- 
into the Chancery, which developed a supplementary body of ^^JJ^ 
law to meet the deficiencies occasioned by the rigidity of the 
Common law. 

The Appellate jurisdiction in cases of error passed into the Emnr from 
House of Lords and is all that Parliament retained of theii^^^^rtt 

weht to the 
1 Qardiner, Hist, of £ngl«nd| i. 6* Iiordi* 

X % 



308 THE HIGH OOUBT OF FABLUKENT. [X. 

leeidaary jadicial power vested in the Crown. Records were, 
as Lord Hale tells us ^, broaght from other courts, sometimes 
to be examined in plena parliamento, sometimes coram praelaiif^ 
procerihus et magnat%bu9 in parliamento. 

In the reign of Henry IV the Commons requested to be 
relieved of the judicial business of Parliament, and the Lords 
alone have exercised this jurisdiction. Appeal lay to the 
House of Lords by writ of error from the Common Law 
Courts, alleging error of law appearing upon the face of the 
record. Early in the seventeenth century the House assumed, 
And appeal and (after some conflict with the House of Commons in the 
CowS!'"*^ reign of Charles II) continued to exercise jurisdiction in cases 
of appeals from decrees in equity. Such an appeal was made 
by way of petition and not by writ of error^ and was of the 
nature of a rehearing, though no new evidence was admitted. 
Proceedings in Error have been abolished by the rules of 
Court made in pursuance of the Judicature Act of 1875, and 
Order, 57. all Appeals take place by way of a rehearing ; the procedure 
in respect of them is not matter to be dealt with here. 
But the jurisdiction of the House of Lords has undergone 
a striking change in the course of the legislation consequent 
upon the Judicature Act. 
39 ft 40 The Appellate Jurisdiction Act, 1876, places the jurisdiction 

itB ffeot ^ ^^ ^^^ House of Lords upon a statutory basis, and determines 
the constitution of the Court in so far as it provides that no 
appeal shall be h^trd unless there are at least three members 
present who have judicial experience of the kind described in 
the Act. A sitting of this Court is however a sitting of the 
House of Lords ; the forms of giving judgment follow the 
forms of carrying a motion on any other subject ; and the 
Appellate Jurisdiction Act may be said to have been directed 
not so much to changing the character, as to securing the 
efficiency of that branch of the High Court of Parliament 
which acts as a final Court of Appeal. Of its Amotions in that 
capacity it will be proper to speak in dealing with the Courts, 

— - Hale, Jurisdiction of the House of Lords, c. zzii (p. 127, ed. Haigreaye), 



§4.] PUBLIC PETITIONS^ 809 



§ 4. TAe Bight of Petitioning. 

The right to petition was said by one of the Judges in the 
Seven Bishops' case to be ' the birthright of the subject,' and 
it wonid seem that, in accordance with the King's promise in 
the Grreat Charter that he wonld not deny or postpone justice to 
any one, whosoever in the thirteenth or fourteenth centuries 
wanted by peaceable means to get anything which was not 
recoTerable in the courts of law, addressed a petition to the 
King in that great council of which Parliament was at first 
a session. Legislation itself was, as we have seen, for a long 
time initiated by petition of the Commons or Clergy to the 
Sling in Council ; and individuals addressed the King in his 
great Council and Parliament, and it was held that wherever 
' fix>m the poverty of the petitioner, the power of his adversary, 
the insu£Sciency of the law, or any other similar cause, he could 
not obtain redress, then the Supreme Court of Parliament 
was to give him a speedy and effectual remedy^.' For the 
assortment of these petitions different arrangements were 
made from time to time. Edward I appointed receivers 
and triers, and as the procedure of Parliament became or- 
ganised, its first business upon opening was to hear the 
names of the receivers and triers of petitions appointed by 
the King from among the Lords of Parliament. 

The receiver's duty was to be accessible to all persons who Petitioiui 
had complaints to make, such persons being invited by^^g^ ^' 
public proclamation ; and to transmit their petitions, when '«»«J»««« 
received, to the triers. The triers assorted the petitions^ 
handing over each to its appropriate tribunal, the Judges, 
the Chancery, the Council, or Parliament. 

A survival of this practice exists in the procedure of the 
House of Lords, where, at the commencement of every Par- 
liament, receivers and triers of petitions are appointed. The 
receivers are judges or masters in the Courts ; the triers are 

^ Select Ckymmittee on Public Petitions, 1833. 



310 THE HIGH COURT OF PAELIAMENT. [x.. 

Beceiyers chosen from among the temporal peers. The entry appears 

__- J 4-MAm 

appointed ^1^^ the Journals in Norman French as follows : — 

at proiont 

time. * I>eB Receyours des Petitions de la Grande Bretagne et d'Ireland : 

' Messire Alexander Edmund Cockburn, Chevalier et Cliief 
Justicer de Banc Commnne. 

' Messire Robert Lash, CheyaUer et Justicer. 

* Messire Henry "William Frayling, Ecuyer. 

' Et ceux qui yeulent deliyre leurs Petitions les baillent dedans 
six jours procheinment ensuiyant. 

* Les Receyours des Petitions de Gascoigne et des autres terres 
et pays de par la mer et des Isles. 

< Messire Fitzroy Kelly, Cheyalier et Chief Baron de TExchequer 
de la Reyne. 

* Messire Charles Edward Pollock, Cheyalier et Justicer. 
' Messire John Walter Huddleston, Cheyalier. 

< Et ceux qui yeulent deliyre leurs Petitions les baillent dedans 
six jours procheinment ensuivant. 

' Les triours des Petitions de la Ghrande Bretagne et dlreland : 
' Le Due de Bedford. 

* Le Due de Deyonshire. 

' Le Marquis de Lansdowne.' 

[And twenty-one other peers.] 

* Touts eux ensemble, ou quatre des Seigneurs ayantditss, appeK 
lant aux eux les Serjeants de la Reyne, quant sera besoigne, tiendront 
leur place en la Chambre du Tresorier. 

' Les Triours des Petitions de Gascoigne et des autres terres et 
pays de par la mer et des isles : ' 

[Then follows a list of twenty-one peers.] 

' Touts eux ensemble, ou quatre des Seigneurs ayantditE appel- 
lant aux eux les Serjeants de la Reyne, quant sera besoigne,' 
tiendront leur place en la Chambre du Chambellan^' 

Bat by the end of the rei^ of Richard II the Chancery had 
built up an equitable jurisdiction appropriate to such cases as 
the Common Law courts &iled to remedy for want of 
elasticity in their rules; and the Priyy Council, too, had 
become a body distinct from Parliament; it was (with the 
Crown) the executive, and it was the resort of soitors who 
were oppressed by persons too powerful to be dealt with by 

^ Lordfl Journals, 1880. 



§4-] PUBLIC PETITIONS* 311 

the ordinary process of law. Suitors who desired a remedy 
for individnal grievances ceased to apply to the High Court 
of Parliament, whose legislative, as contrasted with its 
judicial fimctionB, were now acquiring prominence. Their PetitionB 
place was taken by suitors of another sort, who desired a privi- ^i^^^, 
lepum or change of the law for their benefit, or an exemption 
from its provisions. From the time of Heniy IV such suitors 
become frequent, addressing themselves chiefly to the Com- 
mons, sometimes to both Houses of Parliament, sometimes 
to the King in Council. But such petitions, to whomsoever 
they were addressed, appear to have gone through the form of 
legislation, and to have received the assent of Crown and 
Parliament. 

Private bill legislation was simpler in its objects than it is 
now, though similar in its character. An estate act, a divorce 
act^ a naturalisation act, are modem instances of the limited 
kind of privihgia which petitioners sought when they first 
asked Parliament to alter the law on their behalf. A railway 
or canal bill, though conferring exceptional rights on a cor- 
poration, may affect in its operation the proprietaiy rights of 
very many and the comfort or prosperity of a large portion of 
the community. The line between public and private legis- 
lation is less easily drawn than it was in the early days of 
private petitions. 

But I have so far spoken only of petitions of two kinds — 
petitions which asked Parliament for a remedy afterwards 
given direct by the Courts, and petitions which asked for 
changes or exemptions from the law on behalf of individuals. 

What are called public petitions, that is, petitions com-PabUo 
plaining of public gnevances, and asking for some change in 
the general law, or some legislation to meet new circum- 
stances, are not common before the seventeenth century. 

A Committee of Grievances, to which petitions were 
referred, was appointed by the House of Commons in i57ii 
and throughout the reigns of James I and Charles I entries 



312 THE HIGH COURT OF PAELIAMENT. [x. 

appear in the Journals of the Honse regulating or referring to 
the proceedings of this Committee. In Janoaiy 1640 we 
find this entry : 

'Members added to the Committee for sorting petitions, 
and are specially to consider of and to sort such petitions as 
concern the public' 

Such petitions multiplied during the first years of the 
Long Parliament, and after the Restoration it was thought 
well to restrict tumultuous petitioning on matters of public 
policy. 

13 Car. II, St. I, c. 5} prohibits under penalty of 



legal (i) The signing of petitions to the King or either House of 

^•^ Parliament for any change in Church or Stete by more tlum 
•entfttioii, twenty persons, unless approved, in the country, by three 

justices of the peace or a majority of the grand jury sitting at 

assize or quarter sessions, in London by the Mayor, aldermen, 

and Common council : 

(2) The presentation of a petition by a company of more 

than ten persons. 

The Bill of Right contains a clause which does not seem 
wholly consistent with the Act of Charles IL It declares 
that: — 

* It is the right of all subjects to petition the king, and 
all commitments and prosecutions for such petitioning are 
illegal.' 

The statute law relating to petitions is thus brief, and may 
almost be said to be immaterial For the Act of Charles II 
seems to be construed as directed not against petitioning, but 
against the presentation of petitions in a certain manner. It 
is more important to follow the dealings of the Lords and the 
Commons with regard to petitions submitted to them, 
right of As to the respective rights of petitioners to petition, and 

coniDioiior 

to preaent the Commons to deal with such petitions, the House declared 
' the principles on which it would act in two resolutions passed 
in 1669, which run thus:— 



«*•■■ 



1 4.] PUBLIC PETITIONS. 313 

' That it is an inherent right of eveiy commoner in England 
to prepare and present Petitions to the House of Commons in 
case of grievance, and the Honse of Commons to receive the 
same/ 

' That it is an undoubted right and privilege of the Commons right of 
to judge and determine concerning the nature and matter of to reject 
such petitions, how far they are fit or unfit to be received/ ^"^ 

The right to make petition, and the right to receive and 
consider such petition was so far clearly set forth, but it has 
been a matter of increasing difficulty to deal with petitions 
as they became more frequent. 

Every petition must be presented to the House by a mem- 
ber, and the presentation, the reading and ofben the discussion 
of petitions made inroads upon the time of the House, which 
eventually it became necessary to limit. Petitions had to be 
presented before lo in the morning: at that hour, fifty years 
ago, members who had petitions to present came down and 
balloted for places ; if a member came out high on the list he 
might get his petition presented and read, and if need be dis-^ 
cussed that evening. 1£ he got a low place on the ballot, the 
time allowed for the reception of public petitions might, 
owing to pressure of the public business of the House, be too 
short to enable him to present his petition, and he would 
have to reappear at lo a.m. the next day to take his chance 
of another ballot. 

The numbers of petitions steadily increased. In the five 
years ending 1789 it was 880. In the five years ending 1831 
it was 24,49^. In the five years ending 1877 it was 91,846. 
The cost of printing petitions amounted between 1825-1831 
to i€*ia,ooo. 

To remedv these troubles the House has firamed various rules 

. . -of the 

rules. A select Committee is now appointed^ m pursuance of House, 
a resolution of February aoth, 1833, to which are referred all 
petitions except such as relate to private bills. The duty of 
this Committee is to classify, to abstract, and to report. Its 
reports are issued twice every week during session, and the 



314 THE HIGH COUET OP PAELIAMENT, [x. 

Committee has power to direct the printing of a petition in 
extento^ and to limit its circulation to members of the House. 
As a consequence of this process of classifying and abstract- 
ing of petitions by the Committee, the House has been able 
to economise its time in the presentation of petitions, and by 
standing orders of 1842 and 1853 to limit the dealings with 
a petition on its presentation by a member to a statement of 
the parties from which it comes, the number of signatures, 
the material allegations and the prayer with which it con- 
cludes. No debate is allowed, but the petition if required to 
be read may be read by the clerk of the House. The rule as 
to debate may be set aside, and the petition discussed if it 
should disclose a case of urgency for which an immediate 
remedy is required, 
rejection of It remains to consider how the House will deal with Peti- 

petitioiui. 

tions which are in form insufficient, or in matter such as the 
House considers ' unfit to be received.' 

In form a petition must satisfy certain requirements. It 
must be written, it must be free from erasures or interlinea- 
tions, it must not be a simple memorial or remonstrance, but 
must conclude with a prayer. 

In matter it must be respectful of the privileges of the 
House, and free from disloyalty or expression of intention 
to resist the law. Beyond this the inclination of modem 
times is to allow the widest latitude to petitions. 

One may profitably compare the Kentish Petition with a 
somewhat less celebrated, though at the time notorious 
petition of the year 1875. 
^« . The Kentish Petition^, drawn up on the »9th of April, 1 701, 

petition, and signed by all the Deputy Lieutenants of the county present, 
more than twenty Justices of the Peace, and a large number 
of freeholders, was intended to uige the Commons to greater 
dispatch of business, and to enable the king to Mfil his treaty 
obligations with the States General It concluded with a 
prayer * That this House will have regard to the voice of the 

' xiii Commons JpnrnAb, 518. 



{4-] PUBLIC PETITIONS. 315 

people : that onr religion and safetjr may be effectaally pro- 
vided for; that the loyal addresses of this House may be 
tamed into bills of supply ; and that His Majesty may be 
enabled powerhilly to assist his allies before it is too late/ 

On this petition the following resolution was passed — 
' That the Petition is scandalous, insolent and seditious, tend- 
ing to destroy the Constitution of Parliament and to subvert 
the Constitution of this realm.' 

The gentlemen who presented the petition were voted 
guilty of a breach of Privilege, and were imprisoned by order 
of the House. 

The Prittlewell petition* was presented in the year 1875, The 
and related to the conduct of the three judges who presided at petition,* 
the trial at bar of Orton, the claimant of the Tichbome 
estates. But the petition did not merely impugn the good 
faith of the judges, it made suggestions adverse to the im- 
partiality of the Speaker in dealing with complaints of the 
conduct of this trial. 

The select Committee on public petitions drew the atten- 
tion of the House to this document^ and after an interesting 
debate the order that the petition should lie upon the table 
was read and discharged. 

It would seem from the tenor of the debate that the ground 
of objection to the petition was the reflection on the Speaker's 
impartiality. It would not have been a ground for rejection 
that the conduct of the judges was commented upon with 
freedom, for the precedents of the last thirty years go to 
show that the House wisely allows petitioners to express 
anything short of an intention to break the law, or a con- 
tempt for the body to which they appeal for redress. 

A petition may be rejected at once, upon its presentation 
by the member in charge of it ijor, as in the case of the 
Prittlewell petition, it may be ordered to lie on the table, and 
when attention is drawn to it by the Select Committee, the 
order may be discharged and the petition thereupon rejected. 

^ Hansard, vol. a a 3, p. 976. 



816 THE HIGH 00T7BT OF PABUAMENT/ [X» 



§ 5. CommiUees cf Inquiry. 

Origin of The practice of inquiring into the conduct of individualfi or 
tic©.^^"*^ of departments of government by means of special or select 
committees of the House is said by Mr. HaUam ^ to have begun 
in the year 1689. The mismanagement of the war then being 
earned on in Ireland was the cause of this inquiry being 
instituted, and upon its report, which reflected severely upon 
the conduct of Colonel Lundy, the governor of Londonderry, 
the House addressed the Crown with a request that he might 
be sent to England for trial on the charge of treason. 

This right of inquiry, since frequently exercised, depended 
for its efficacy on the exercise of parliamentary privilege to 
enforce attendance of witnesses and production of documents ; 
Need of but it was for a very long time hampered by the want of 
adminigter power in the House or in any committee of the House to 
^*^** administer an oath. Gradually, and for certain occasions, the 
power was given to committees to examine witnesses upon 
oath. The first concession of this right was made by the 
Grenville Act, 1770, in the case of committees for trying 
disputed returns; the power was subsequently given to com- 
mittees upon private bills ; and finally^ by 34 & ^5 Vict. c. 83, 
the House of Commons may administer an oath to a witness 
at the Bar of the House, or any committee of the House may 
administer an oath to the witnesses examined before it. 



§ 6. Addreis for removal cf tervanU of the Crown. 

The report of such a committee may form the foundation, 

though it need not be the only foundation, for an exercise of 

the judicial fimctions of Parliament. 

Mode of Certain permanent officers of state, the most important and 

forremoyal conspicuous of whom are the judges, are removable upon an 

of Itotf*" address to the Crown made by both Houses of Parliament. 

} History of England, iii. 143. 



§6.] ADDRESS TO THE CEOWN. 317 

The gronnd of proceedings by address may be the petition of 
an individual, the motion of a member, or the report of a 
select committee appointed in consequence of such petition or 
motion. 

These proceedings assume a judicial character, and it would 
appear proper that they should begin in the Commons. For 
the Commons are especially * the grand inquest of the High 
Court of Parliament ' ; and there is this further reason against 
such proceedings being commenced in the Lords, that if when 
the matter came before the Commons they thought it a case 
for an impeachment, the Lords would be in the unsatisfactory 
position of judges who had pre-judged the case on which they 
were called to decide. 

The House of Commons, having appointed a committee to Committee 
inquire into the truth of charges made, whether by petition "'^"^• 
or on motion, and having received the report of the committee, 
hears the official complained of in his defence. It may accept 
without further inquiry the report of the committee ^, but the 
better opinion seems to be that the evidence against the 
person charged, although it has already been taken by the 
committee, should be heard at the bar of the House. 

If the House of Commons is satisfied of the truth of the Addren to 
charges made, an address to the Crown is drafted praying the 
removal of the officer charged, and the address, when agreed 
to, is communicated to the Lords. They, if they please, 
inquire again into the evidence, and, if satisfied, agree to the 
Address and send a message to the Commons to that efiect. Agreement 
Thereupon members of the two Houses are deputed to present 
the Address .to the Crown. 

In cases of the sort described. Statute has provided for the 
exercise by the Houses of this judicial power. In the par- 
ticular instance of the judges the Act of Settlement substi- 
tuted this Parliamentary control for the arbitrary power of 
removal previously exercised by the Crown. But an address 

^ See the case of Sir JTonah Barrington, set forth at length in Todd*B Par* 
lentary (Joyemment in England, iL 736. 



318 THE HIGH COURT OP PAELUMENT. [X. 

for the removal of an officer of State, proffered to the Crown 
by either Hoose, may be no more than an expression of dis- 
approval of the condoct of the executive generally, or of an 
individual member of it in particular. 



§ 7. Indirect judicial funcHoni, 

Addrefls We come here to the relation of the Ministers of the Crown 
of miniflter, ^ Parliament, and to the mode in which Parliament can 
affect the composition of the executive by expressions of want 
'of confidence or of disapproval. An address proposed for the 
removal of an individual minister might, or might not, be 
regarded as condemnatory of the general policy of the col- 
lective Ministry, according as the matter complained of was, or 
was not, a part of that general policy. Usually the Ministry 
will assume collective responsibility where censure is levied at 
the conduct of a particular department of government, 
or of But the most conspicuous cases of such an exercise of quasi- 

co^dence judicial power by the House of Cotnmons in recent times have 
inmiiiiBtry. }^qi^ eases of amendments introduced into the Address pre- 
sented by the House in answer to the Speech from the 
throne ; such amendments being to the effect that it is 
expedient that her Majesty's Ministers should possess the 
confidence of the House and of the country, and that such 
confidence is not reposed in the present Ministers of the Crown. 
Amendments of this nature having been carried in 1841 and 
in 1859 have in each case led to the resignation of the 
Ministry*. 
Diffen But the effect and legal character of an address of this 

address for uature must be carefully distinguished from an address such 
I^djw^ ^ ^ ^^^ ^^^ ^® removal of a judge. The latter is a statutoiy 
remedy given to the estates of the realm for the security of 

^ An adverse majority on any matter which ministen have declared to be 
Tital is regarded as equivalent to a vote of censure or an address for their 
Removal. But the forms of address which I have cited ftnnish a more definite 
contrast to the address for the removal of a judge. 



§7.] QUASI- JUDICIAL FUNCTIONS. 319 

the due administration of justice ; the former is a mode of 
expressing disappToval of the individuals whom the Crown 
employs for the time being in the transaction of the business 
of goyemment. 

And thus we pass by graduated stages from the direct and Control of 
legal exercise by Parliament of judicial power, in cases of q^^^. 
supreme importance^ to the exercise of that constant criticism *^^®> 
and control of the executive which our system of Cabinet 
government puts into the hands of the legislature. By ques- 
tions addressed to Ministers of the Crown, by motions for 
papers on matters of present interest, the members of either 
House can keep a check on current business and obtain ex- 
planation of its conduct, so far as is not inconsistent with the 
public advantage. By votes of censure, by addresses to the 
Crown declaratory of want of confidence, by adverse majorities 
on important matters, Parliament can pronounce judgment on 
those officers of state to whom the Queen has entrusted the 
conduct of affidrs. 

But here we pass outside the region of law and come to a nukUer 
those conventions or constitutional understandings which, as yenticm. 
Professor Dicey has said, 'may be expressed with ease and 
technical correctness in the form of regulations in reference to 
the exercise of the prer(^;ative ^.' As such they should be 
more properly deferred for treatment when I come to deal 
with the Crown and its Ministers. But here it may be well 
to say this much. 

The control that the House of Commons can exercise over uitSmate 
the choice of Ministers by the Crown rests, so far as it has g||J^^,| 
any l^^l basis, on precisely the same footing as the necessity 
for annual Sessions of Parliament. If Parliament does not 
meet, the army cannot be maintained, and much of the 
revenue of the year cannot legally be paid away. If Parlia- 
ment does meet, the House of Commons has power, if so 
minded, to refuse to pass the Army Bill and the Appropria- 
tion BilL The necessity for summoning a Parliament and the 

^ Diceji Law of the Coiutitatioii, 551. 



320 THE HIGH COXTET OP PABLIAMENT. [i. 

necessity for keeping on good terms with that Parliament are 
therefore the same; and I have spoken of the House of 
Commons as wielding power in these matters, because, though 
the refusal of eitier House to pass these necessary measures 
would be fatal to them, the Crown can, as we have seen, alter 
the composition of the House of Lords by a creation of Peers, 
it can only alter the composition of the House of Commons 
by an appeal to the electorate. 

If therefore the majority of the House of Commons and the 
Ministry are hopelessly at variance, and the House of Com- 
mons expresses its opinion by votes of censure, the Crown 
must do one of three things ; it must either keep its Ministers 
and its Parliament, with the intention, should the necessary 
statutes not be passed, of maintaining an army, and spending 
the public money in defiance of law ; or it must keep its 
Ministers and dissolve its Parliament; or it must keep its 
Parliament and change its Ministers. 
The legal But practically these sanctions are not contemplated when 
JJ^^^jJ^** a Ministry is changed. A Ministry may last for years which 
■orted to ; ie in a permanent minority in the House of Lords, yet the 
House of Lords does not attempt, and nobody ever contem- 
plates its attempting, to throw out the Army Bill. When 
a Ministry is censured by the House of Commons, or is beaten 
on a division in a matter which it has declared to be vital to 
its existence, nobody ever contemplates its remaining in office 
and violating the law. It is expected that the Queen will 
change her Ministers unless she has reason to believe that the 
House of Conmions does not represent the feeling of the 
country, and in that case she wiU change her House of 
Commons by a dissolution of Parliament, 
but ne- We arrive then at this point, that the Crown, as represented 

ha^ony of ^7 its Ministers, must, by the conventions of the constitution, 
^^dc*^" be in harmony with public opinion as represented by the 
mens, members of the House of Commons. The legal necessity lies 
in the background ; it forms an ultimate sanction which is not 
often present to the minds of those who act upon it. 



}7.] QUASI-JUDICIAL FUNCTIONS, 321 

The conventional necessity is wholly outside the contempla- m repre- 
tion of law. The will of the electorate can only be expressed cnmtoLd 
through its representatives, just as the will of the Crown can I*®opl«- 
only be expressed through its Ministers, and what is some- 
times talked of as ' the mandate of the constituencies ' has no 
more 1^^ value than the private opinion of the Queen on 
a question of national policy. 

A member of the House of Commons represents not merely 
the constituency which has returned him to Parliament but 
the entire kingdom ^. He is bound to respect the wishes of 
his constituents, partly because he may have engaged himself 
at the time of his election to try and promote them, partly 
because he may fear rejection at the next occasion of his being 
a candidate if he does not act up to his professions. 

In this manner a vote of the majority of the House of 
Commons against a Ministry in the nature of a vote of 
censure is an indication, probable, though not certain, that the 
majority of the electorate desire to see the poUcy of the 
country directed by other hands: it foreshadows remotely 
certain legal diffici^ties which have never as yet been allowed 
to arise. 

It may seem fimciAil to attribute to an expression of opinion, 
which, however important in its results, has no immediate 
legal operation, the character of a judicial proceeding. This 
mode of passing judgment upon the executive was certainly 
not present to those who first wrote and spoke of the High 
Court of Parliament. Yet it appeared to me to be an attri- 
bute of Parliament which could not be passed by, and which. 
if was to be dealt with at all had better be dealt with here. 

^ Coke, 4. Inst. 14. 



INDEX. 



Abbot: 

the mitred abbots % luge part of the 

House of Lords, ao. 
derared to be excused ftttendaiiee as not 

being barons, 1 74. 
AbfuTfttioa: 
oath of 80, 8& 



leave of, aaa. 



to the Crown, a priTilege demanded by 

Commons, 61, 190, 135, 136. 
how enjoyed by Lords, 203. 
Act: 
bill oontainiqg form of Aot, 3i8. 
bill tnmed into Act by assent of Crcfwn, 
244,353. 
Aot of Settlement : see Index of Sta- 
totea. 
as to placemen, 38,. 34, 74. 
Act of SopremaoF* oee Indoc of 

Stotates. 
Address: 
in answer to Queen's speech, 56, 63. 
mode of prssentation, 63. 
amendments to, 318. 
£ar remoral of offieen of House of Com- 
mons, 133. 
of judges or othar serraDts of the Crown, 

317- 
Adjoomment : 

each House adjourns independently, 63. 

Crown cannot require adjournment^ 64. 



in lieu of Parliamentary oath, 57, 80, 81. 



fior corrupt praetiees at an election, 79, 
110. 
Aid: 

right of king to lery, 374. 
Alien: 

incapable of sitting in House of Com- 
mons, 73. 
or of acquiring p o litical capacity except 

by naturalization, 73. 
and so of franrhiie, iioi. 
and of summons to House of Lovds, 191. 



Alloook, Mr. : 

case of, 71. 
Allegiance: 

oath of, 57, 80, 81, 88. 



receipt of, a disqualification for franchise, 
no. 
Amendmente: 
to public bill in Commons, 335. 
in Lords, 337. 
communication of amendments between 

the Houses, 3a8, 339. 
Lords may not amend money bills, 331. 
to the Address to the Crown, 318. 
Anne : 

her presence at councils, 38, and in 

Parliament, 350. 
her creation of peers, 184, 397. 
Appeal: 

Lords of, 67, 170, 300; are exceptions 
to rule against life peers, 190. 
Appellate Juzisdiotion : 

of House of Lards, 3oo, 306-8. 
Appropriation : 

of supply in reign of Charles 11, 33. 
developed under William III, 35, 37. 
necessitates annual sessions of Parlia- 
ment, 337, 338, 347, 348. 
Appropriation Aot : 
how far necessary for dealing witb reve- 
nue, 337, 338. 
form of enacting clause, 338. 
form of royal assent to, 356, 357. 






Act for, necessitates annual sessicn of 
Parliament, 348. 
Arrest: 
freedom from, a privilege of the House 

of Commons, 61, 130, 136, 138. 
does not extend to felony, breadk of 

peace, or contempt of court, 136. 
Wstory of, 137. 

extent of privilege in tSme^ 138. 
a privilege of House of Lords, 303* 
Asbby V. White : 
the question of privilsge raised thsfoin, 
130, 160, 164. 
AtlMiet: 
how disqualified for Pariiams^ 81, 8a. 



la 



324 



INDEX. 



Attainder: 

AetB of, 300, 506. 
▲ttendanoe : 

of members of Commons, how &r obliga- 
tory, 322. 

of Lords in person or by proxy, 3o6. 
Attorney General : 

how summoned to Parliament, 49. 



Ballot: 

the Ballot Act, presoribes form of writ 
of smnmons, 53. 

and mode of Section, 121. 
Bankxnptoy : 

a disqualification for House of Commons, 

79. 
vacancy of seat by, 149. 

a disqualification for summons to House 

of Lords, 191. 



of House of Commons, summons to, 132, 

138. 
bill presented at, 224. 

Baron: 

title of, 202. 
Baronage : 

an estate of the realm, 44. 

how it originated, 171. 

the majores barones of John, 171, 172. 
. the baronage of Edward I, 172. 

how created, 173, 174. 

hereditary, 173. 

how far connected with tenure, 172, 174. 
Barony: 

feudal liabilities of, 172. 

by tenure, 174, 180, 181, 182. 

how fan alienable, 175. 

how tiUe acquired, 174, by writ, by 
patent, 174, 193, 194. 

tenancy by the curtesy in, 175. 

surrender of, 175, 176. 

decisions respecting, in 17th century, 
176, 187. 

in 19th, 176, 177. 

settlements of, 175, 182, 183. 

in relation to bishoprics, 198, 199. 
Bate: 

case of, 273. 
Beauchamp, Lord : 

his claim to parliamentary franchise, 
109. 
Benevolence : 

forbidden by Petition of Right, 279, 281. 
Berkeley peerage : 

settlements of, 175, 181. 

decisions concerning, 180, 182. 
Bill: 

a bill read pro forma before Queen's 
speech considered, 58, 63. 



BiU: 

legislation by, 217, 218. 
three readings, 218. 
Public Bill, 220-239. 
in the Commons, 224, 225. 
bills which must originate in com- 
mittee, 226, 237. 
in the Lords, 327. 
Money Bill, 229-339. 
history of, 330, 331. 
must originate in resolution of Com- 
mittee, 326, 334. 
and on recommendation of the Crown, 

333. 
form of, 338, 339. 
Private Bill, 221, 239-244. 

royal assent to, 252-4, 256. 
Bm of Rights, 
general purport, 24 ; as to freedom Of 
speech, 141 ; dispensing power, 269, 
370 ; suspending power, 273 ; taxa- 
tion, 282 ; right of petitioning, 312. 
Bishop: 

mode of summons, 50. 
a member of witan, 1 70, 
of Feudal Council, 171. 
when Lord of Parliament, 186. 
mode of appointment, 198. 
their positions in the House of Lords on 
criminal trials, 199 ; at impeachments, 
306. 
question whether he sits as tempoial 

baron, 199. 
may resign see, 200. 
Black rod : 

Gentleman usher of, 303. 
Borough : *ee Franchise. 

unrepresented in Magnum Concilinm of 

Magna Charta, 43. 
represented in De Montfort's PazUament, 

43. 
and in all Parliaments after 1395, 44. 

form of writ for electing memb^ bcibre 

1873, 54. 

after 1873, 51. 

election of members for, 89, 90, 94, isi* 

franchise in before 1833, why oonfused, 

?o» 94- 

old qualifications, tenure, residence, in- 
corporation, 94; corporate office, 95, 97. 

how i^ected by charters of incorporation, 
97 ; by addition of boroughs by Tudora, 
97 ; by resolution on disputcKi retnzni, 
98. 

in Scotland, loi. 

efifect of disfranchisement of by Befona 
Act, and Redistribution Act^ 115. 
Bradlaugh, Mr. : 

his claim to make affirmation instosd of 
oath, 81, 83. 



INDEX, 



825 



Bradlangh, Mr. : 

his claim to be sworn, 8a, 85, 1 54, 1 64, 1 65. 
Breach of peace : 

unprotected by privilege of Parliament, 

ISO- 
Bribery : see Corrupt Practices. 

of members of Parliament, 289, 292-295. 

of constituencies, 294, 295. . 
Bordett y. Abbott : 

a»e of, 155, 158, 167. 
Burgesses : 

two to be elected for each borough, 44. 

C. 

Osbinet: 

growth and constitution of, 27-29. 
Cuididato : see Election, Corrupt Prao- 

tice, Nomination, PoU* 
Catherine Howard : 
her attainder, 253. 
Catholic : 
excluded from Parliament by form of 

oath, 80. 
oath provided for, 80, 88. 
Chaimum of Committee of Ways and 
Means: 
his duties in respect of public bills, 225 ; 
of money bilk, 235, 236; of private 
bills, 742. 
may act as Deputy Speaker, 132. 
may put question as to withdrawal of 
strangers, 143. 
Ghaj&oellor: 
receives order to issue writs for summons 

of Parliament, 47. 
his duties at the opening of Parliament^ 

55* 59- 
approves the ^>eaker and grants privi- 
leges on behalf of the Grown, 56, 61, 

135- 
receives application for writ from peer 

on attaining full age, 194. 

Is Speaker of House of Lords by prescrip- 
tion, 202. 

presides at impeachment of a Commoner, 

304. 
Chancery : 

writs issued from, 47, 49, 89. 

returns made to, 57, 90, 121. 

claim to judge returns, 150, 151. 

developes equity jurisdiodon, 307. 

appeals from, 308. 
Gharles I : 

his dislike of constitutional forms, 26. 

his use of proclamations, 263. 

his entry into House of Commons^ 250. 
Charles II : 

his revenue, 23. 

appropriation of grants made to him, 74. 

has dislike of large councils^ 27. 



Charles H.: 

Parliamentary oath required in bis reign, 

57» 88- 
duration of his first Parliament, 65. 

members of his last three Pailiamente 
summoned to Convention, 67. 

his presence in Parliament, 249, 250. 
Charter: 

of corporate towns, the franchise nar- 
rowed by, 95. 

gave votes to freemen, 94, or corporate 
officers, 95, 97. 

of pardon, petitioned against by Com- 
mons, 265. 

The Great Charter, 4, 42, 210, 278. 
Chiltem Hundreds : 

acceptance of, vacates a seat, 71. 
Cinque Ports : 

service required of for national defence, 
280. 
Civil List: 

begins after revolution, 27. 
Clergy: 

how represented in the Council, 19. 

effect of reformation on their influence in 
the state, 2a 

not summoned as an estate to Magnum 
Condliimi of John, 42. 

how summoned to model Parliament, 44. 

how they ceased to attend summons, 

omitted from 15 Ed. II, as necessary 

parties to legislation, 44. 
cannot sit in the House of Commons, 73* 
nor Roman Catholic clergy, 78. 
relinquishment of orders by, 73. 
right to initiate legislation by petition, 
214. 
Clerk of the Conunons : 

discharges duties of the chair during elec- 
tion of Speaker, 55, 60. 
his duties generally, 133. 
Clerk of the Crown : 
issues writs of summons to Psrliament, 

47» 5a. 
supplies clerk of Commons with list of 

elected members, 56. 

receives notice of election of Represen- 
tative Peers of Scotland, 56, 195. 

receives Speaker*s warrant to issue new 
writs, 62, 148. 
Clerk of the Crown and Hanaper in 
Ireland : 

his duties in election of representative 
peers, 197. 
Clerk of the Parliaments : 

his duties at the opening of a Parliament, 
156, and otherwise, 203. 

his title, 133. 

receives list of elected Scotch peers, 195. 



326 



INDEX* 



Clerk of the Peace : 

his dntiei m to register of voien, Ii8. 
Clifton peerage : 

case of, 176, 187. 
Coke: 

his opinion as to House of Comnioiis 
being a Court of reeord, 157, 158. 

— estate in a dignity, 1 79. 

— the Talidity <^ proolamatiniM^ a6a. 

— the jadicial powers of Lords and Com- 

mons, 300. 
Commission : 
q^ng of Parliament hv, 55, 59. 
reading of Qneen''s speecn by, 58. 
oonfirmation of Mr. Speaker elect by, 61. 
for prorogning Parliament^ 64. 
for dissolving Parliament, 65. 
to appoint deputy Speakers of House of 

Lords, 203. 
to assent to Acts of Parliament, S5a, 353. 
Commissions: 
in army and navy, do not disqualify for 

House of Commons, 75. 
Commitment : 
right of, for contempt, enjoyed by House 

of Commons, 131, 134. 
extent of punishment, 157. 
mode of exercise, 134, 156, 157. 
grounds of right, 157, 158. 
grounds of oonmiitment,must they appear 

in warrant, 166, 167. 
in return to writ of hisbeas corpus, 165, 

166. 
by House of Lords, 305. 
Committee: 

of House of Commons. 

of privilege and elections, 15%. 

decisions on disputed returns, 97, 151. 

under Grenville Act, 152, 315. 

of supply and ways and means, 131. 

public tills which must originate in, 

330. 

standing committees, 336, 337. 

of supply, 334-336. 

of ways and means, 336, 337. 

of standing orders, 343. 

of public petitions, 315. 

of inquiry, 316. 

of House of Lords — Chairman of, 34s. 

of privileges deals with disputed claims 

of peerage, 194. 
Commons, House of: 
its relations with ministers in the Middle 

Ages, 17. 
under the Stuarts, 33. 
in the modem constitution, 36-39. 
not summoned as an estate to the Qreat 

Council of John, 43. 
mode of summons as an estate, 43'45. 
dedlne to advise on peace or war, 46. 



Commons, House of: 

oentrol ai finance by, 47, and see Honey 
Bill, Supply, "Waya and Means. 

writ for election of members, 51, 53. 

mode of choosiiu^ Speaker, 55, 59, 60. 

oath required ofmembers, 57, 62,80, 81. 

djsqnalifinations finr memberBhip of, 71- 
88. 

seat in, cannot be resigned, 84. 

mode of election to, 89, and $ee Meetion. 

its privileges, 139, and see Privilege. 

jurisdiction claimed by, 301. 

powers of impeachment, 304-5. 
Common Law : 

aigimient from in case of impositions, 374. 

in case of ship-money, 380. 
Oommnne Conoilinm ; 

its constitution as defined in Magna 
Charta,43. 
Conference : 

between Lords and Commons, 338. 

a free oonfersnee, 338. 
Conflnuatio Chartarom : 

asserts right of Commons in taxation, 
310. 
Confirmation of bishops, form of> 198. 
Congi d'^lire, 198. 
Conaeoration, 198. 
Consent of bishop prior to confirmation, 

198. 
OanaoUdatad Fond, 336, 338. 
Constitation : 

the modem, dates from Bill oi Righti, 

English Constitution difiTen in theory 
Mid practice, 31. 

— is unwritten, 33. 

— is slterable by ordinary p r oc e s s of 
legislation, 34, 399. 

divergence of theory and practice, 33, 34. 
OoPBtitntiomal Iaw : 

topics of, 10, II. 
Contempt: 

conunitment for by Commons, 130, 131. 

nature of offsnoe, 167. 
Contract: 

Feudalism based on, 19. 

on account of public service a disquali- 
fication for House of Commons, 78, 391. 

a mode of influencing members, 391. 
Convention Parliament, 36. 

how summoned, 67. 
Conventions of Constitution, 67, 68, 69, 

319, 330. 
Conviction. 8m Velony-, Treason. 
Co&Tooatioii : 

clergy prefer to tax themselves there, 44. 

to be (fistinguished firom the jtfsemblage 
of Clergy as an estate of ~ ~ 
53. 



INDBX. 



327 



CkMLway, Qenanl: 
depriyed of his cwmnaiwion for oppofing 
miniatiy, 141, 
Oopybold: 
made a qualificatioii for ooimty fraoehiae 

by reform Act^ 93* 
bow affacted bj B^roaeataUoa of Pfople 

Act, 93. 
proie nt extent of qualifioatigiQ, 104, 
ComwaU: 

representation of, 97, 385. 
Oovporatioii ! 
officers of possessed the franchise ill oer- 
tain towns, 95, 961 97, 98. 
Oarropt Praotioes : 
at eUctian a disqialificatm fiw Hooae 

of Commons, 79. 
for exercise of fraachiss^ zio. 
efTect <ii upon bosrough firanduM^ 98. 
common before 183 a, 98. 
CouneU FtiTj : 
the king in Conndl the exeentiTe^ 19. 
kow fur a check on the king, 19. 
its composition undsr the Adors, a i. 
order in Gooncil for issae of writii 4^ 
Ic^gisUtion by Crovra in Conpoil, 313. 
Gotmty: 
towns wbieh were oountiea, 99. 
representation of connties in Parliamsn^ 

ixa, 113. 
election of members for, 89, 90, lai* 
Coontj Ckrart: 
Pariiament was to V^^^iw* what Comty 

Court was to shire, 43. 
its connection with reprssentatiTe in- 

stitations, 45. 
place of eleetioii of ivpresentatiTee lor 

Commons, 54, 89, 00. 
both for counties aiia boronghsi 90. 
Coonty Franchise ; 
residence required of voters, 99. 
limited to fortv shiUiiy fre»hoMari 9a. 
how dealt with by Beiorm Act, 93. 
how dealt with by BeprsBsntation of the 

People Act, 93. 
in SootUmd before 1884, loi. 
in Ireland before 1884, loa. 
since 1884 how fiur uniform with borough 
>, Z03-106. 



difficulty of controlling its antien in 

poHcy, 17. 
in Imdfttion, 18. 
how mr checked by Cooaml, 19. 
souroee of its stre^^ under Xudorsi ao. 
issues between C^own and Conunou 

under Stuarts, ai, 34. 
medifBTal and modem royalty, 35. 
its lossof inflnenoe und«r CabixiBt Oortm- 

ment, 37, 39. 



Grown: 
with l4stds and Commons makes Uws, 

353, aSSi ^54- 
cvnmons Parliament^ 47, 55, 59, 346-7. 
declares causes of summons, 58, 69, 348, 

349. 
other communications with Parliament, 

350, 351. 
prorogues Pariiameui, 64. 
diesolyes, 65. 
demise ol^ used to dIsBolve Ptsrifament^ 

66. 
Statute law on this subject, 66, 67. 
Influence of in House of Commons, 74, 

a88, et sq. 
incr o stsed by eraatiaii of boroughs, 97, 

384, 385. 
limits of its rights to oeate peers, 177, 

164. 
to summon peers, 184, 191. 
refers disputed daims to the Lords, 194. 
mode of action in lypojntanent to Bishop* 

rics, 108. 
receiyes homage of bishops for temporali- 
ties, 198. 
its dUdm to legislate by ordinance, 3ia ; 

and proclamation, a(x>, et sq. 
Crown in Council as distingmshed from 

Crown in Parliament, 319, 363. 
effect of logislAtion by bill on powers of 

Crown, 319, 354, 355. 
its demand of money, the foundation of 

a money bill, 333. 
Grown office : 
writs issued theocQ, 47, 49^ 89. 
returns kept tbwe while Pariiamsnt 

lasts, 57. 
returns made there, 90^ I3i« 
GnriaBegis: 

development of its jodisial powers, 307. 
Gortesy: 

tenancy by in • bttronage, 175. 
Gaatonw: 
right of Crown to levy, 374, 376, 378, 

379. 

P. 

Danby, Iiord : 

easeo^ 305. 
Debate: 

publication of, 143-148. 
Deputy : 

of Speaker, 133. 
De TaUagio non oonoedendo. teladtt 

ofSUtntes. 
Dispensation : 

distinguished from pardon and lieense, 
367. 

distinguished from impositioB and foroed 
I lew, I?;- 



928 



IKDEX« 



XMsponsiiig power : 

iU use in medisyal oonstitation, 265. 

Attempts to define it, a66. 

its oBe and abuse in leyenteenth oentmy, 
168. 

how dealt with by Bill of Bights, 369, 
a7o. 
BiflQualifioation : 

for memberahip of House of Commons, 
71-80. 

how dealt with by House, 149. 

for membership of House of Lords, 19Z. 
Dissenter : 

not excluded by Parliamentary oath, 80. 
Dissolution : 

form of, by Proclamation, 48, 65. ■ 

effect of, on ezisteno^ of ParliameDt, 63. 

effect of, on impeachment, 305. 

takes place by royal prerogative, 65. 

takes place by efflux of time, 65, 60. 

formerly by demise of Grown, 67. 
Distribution of Seats: tee Bepreaen- 

tation. 
Duke: 

title of, aoi. 
Dunoombe, Mr. : 

case of, 138. 
Dwelling House : 

definition of, 100. 



aarl: 

a member of Witan, 170. 

and of Feudal Council, 1 71, 

mode of creation, 174. 

title o( aoi, aoa. 
Edinburgh : 

place of election of Scotch peers, 1 94. 
Xdward I : 

his model Parliament, 43. 

estate of baronage created in his reign, 

I72» 173- 
Xdward II : 

renunciation of allerianoe to, 19. 

enactment defining legislature, 44, a 10. 

Xdward III : 

form of Statutes in his reign, a 13, 

ai7. 
Xdward VI : 
additions to Commons House in his reign, 

a85. 
Saeotions : 

of ministers demanded by mediffival 

Parliaments, 17. 
of members of Commons House, process 

of in fifteenth century, 89, 90. 
procedure before Ballot Act, lao. 
under proTisions of Ballot Act» lai. 



Eleotions : 
disputed elections, right of Commonf to 

determine, 96, 149-153. 
now determined by High Court of /us-' 

tioe, 152. 
oonmiittees of, 97, 151. 
of Scotch and Jiish peers. See Feersffe. 
Meotor : gee Franchise. 
ISliot, Sir John : 

proceedings agunst, 140, 141, 155. 
XOiaabeth : 
her management of the franchise^ al, 

a85. 
her interference with fieedom of speech, 

140. 
Parliamentary oath required in her 

reign, 57. 
her use of proclamations, a6i. 
levied impositions, a 77. 
Msynge: 
his account of the manner of holding^ 
Parliaments, ao5, ao6. 



proceedings in, 308. 
Estate: 

qualification of, for Conmions, 83, 84. 
IDstimates: 

presented to Committee of Supply, a 34. 
XSton College : 

case of, 270. 
IDTidence : 

of membership of either House, 56. 

amendment Acts, 8a. 
Bxaatiners: 

of private bills, a4i. 
Bzecutive : 

attempts of medisvsl Parliaments to 
control it, 17. 

in theory and practice, 3a. 

in what it consists, 32, 37, 38. 
Expulsion : 

of member by House of Commons^ 

156. 
not a disqualification, 156. 

of Lord of Parliament by Lords* Houses 
19a, 193. 



F. 



Fagot votes : 

dealt with by Statute, iii. 
Fealty: 

its effect in medieval royalty, 35. 

oath of taken by bishop elect, 198. 
Fee simple : 

in a dignity, 179. 
Fees: 

payment after oommitment by House of 
Commons, 156. 






INDEX. 



329 



Vttloiiy: 
oonyictioii of, a disqualification for seat 
in CominonB, 78 ; in LorcU, 19a ; for 
franchiBe, 110. ■ 
not protected by privilege of Parliament^ 
136. 
Fradaliam: 

ita conception of royalty, 19* 
Fine: 
cannot be Boffered of a peerage, 175, 
176. 
Tint xeading: 
of a public bill in the CommonB, 224. 
in the Lordi, 327. 
of a private bill, 242. 
Vitaluurxia: 

Fox, O. J. : 

retomed to Conunona House during 
minority, 71. 
Franohiae : 

meaning of term, 89. 

ParlJamentaiy firanchifle before 183a in 
countieB, 9a, 93 ; in boroughs, 94-99 ; 
in Scotland, loi ; in Ireland, loa : 
altered by Acts previous to 1884 in 
oounties, 93; in boroughs, 99, 100; 
in Scotland, loa ; in Ir^and, 103. 

present qualifications : property, 103, 
104 ; occupation, 104, 105 ; inhabitant 
householder, 100, 106, 108; lodger, 
loi, 106, 108. 

ancient franchises reserved, 107. 

disqualification for exercise of, 108-111. 

nnirormity of, its effect in Redistribution 
of Seats, 115. 

right of, ascertainable by courts of law, 
160. 

affected by resolutions of House of Com- 
mons, 98. 
Freedom from arrest: 136- 138. 
Freedom of speech : 

priyUege o^ 139-143. 

oonsequent right of Commons to exclude 
strangers, 4a ; and to forbid publica- 
tion of debates, 143-147. 

how affected by Law of defamation, I46> 

147- 
Freehold : 

a qualification for county franchise^ 9a, 

93- 
present extent of qualification, 103, 104. 



entitled to franchise in certain towns, 

94* 
right how acquired, 96. 

how reserved by Berorm Act, 99. 

extent to which it exists now, 107. 

TreaohTille peerage : 

of, 176. 



a. 



Garter-king-at-Arms : 
his duties at opening of Parliament, 

56. 
George I: 

his disputed title a ground for Sep- 
tennial bill, 65. 
Georg? in : 
took notice of words used in Parliament, 

141. 
undertook business of Parliamentary 

management, 389. 
bribery conducted by, 393, 394. 
personal influence used in Parliament, 
a87, 396. 
Godden v. Hales : 

case of, a68. 
Gk>odwin and Fortesoae : 

case of, 150. 
GrenTille Act : 
provided mode of judging disputed 
turns, 15a. 



Habeas Oorptui : 

return to, where commitment is by order 
of House of Commons, 165-167. 
Hakewill: 

his argument in Bate*s case, 375-279* 
Hampden: 

case of, a8o. 



case of, 139. 
Hempholme : 

stewardship of, a disqualifying office, 84. 
Henry III : 
representative assemblies during his 
reign, 43. 
Henry rV: 
his judgment in Haxey*s case, 139. 
his indemnity of Loids and Conmions, 

330, 349. 
private bill legislation dates fit>m his 
reign, 340. 
Henry VI : 
mode of framing laws in his reign, x8, 

33, 317. 
limitation of county franchise, 93. 
charters of inooix>oration of towns, 97. 
Henry vni: 
his use of Parliamentary forms, 3i, 360. 
his additions to representation, 113, 384. 
privileges of Commons first fonnally 
claimed in his reign, 135. 
Holbome : 
counsel for Hampden in ship-money 
case, 381. 



380 



INDEX. 



done by bishops for temporalities of see, 
198. 
House of Commons : sm Ctommono. 
House of Iiords: 96e LorcUi F^er, 



Householder : 
qnalifieatiaii for franofalso befcra 183a, 

96. 
in 1867 made a qualifioation in bovooghsi 

100, loi. 
its extension to oonnties, 106. 
Howard t. Gosaett : 
case of, 134. 



I. 

Impeaohment : 

mode of controUing ministen bj CSom- 
mons, 17. 

process of, 304, et sq. 
Iinpositiona : 

case of, 375. 

distingnieiLed from dispensation, subsidy, 
and forced loan, 377. 
ImprisonJoient : 

by order of Commons, duraiioai o( 157. 
Inoorporation : 

a qoalification for franchise^ 94, 96. 

charters of, their effect, 97. 
Indenture: 

required in common law writ for «laofeioB 
to Parliament, 54, 90. 

roles respecting, 54. 

of Goodwin's return, 150. 
Indiotable olTenoe : 

not protected by privilege of Parliament, 
136. 
Indulganoe : 

declaration of, 271. 
Infancy: 

a disqualification for nttung in Com- 
mons, 70. 

for exercise of franchise, 108. 

for sitting in House of Lords, 191. 
Inhabitant oocupier : 

nature of qualification, loo, loi. 

distinct from occupier, 103. 

what is inhabitancy, 106. 
Insanity : tee Imnatio. 
Ireland: 

Act of Union with, 30, 49, 51, 1 13, 178, 
196. 

Peer of: fse Peera^. 

Parliamentary franchise in, zot, 104, 
107. 

distribution of seats in, 114, 115. 



J. 

James I: 
his dislike of oonatitnticQal ferns, ii. 
oath of supremacy required of Commons, 

57.80. 
claim to judge retains in Gkanoesy, 150, 

151. 
his use of pmnlsiwatians, a6i« 
creates a Court party in Parliamsnty 386. 
James H : 
the issues between him and his fobfeols, 

difficulties arising cm his abdioatioD, 67. 
his use of dispensing power, 267, s68. 
of suspending power, 271. 
Jews: 
their irarlisiiifintBrT <ii»i iialffifntiimp- 80. 

88. 
John: 
his oomiMKM eomeiiimm rtj^m, 43. 
his distinction between mqfare$ and 

faifioret haroneMf 171. 
Journals: 
of House of Commons, kept by GlsriL of 

House, 133. 
doubted if matter of record, 158. 
citations from, 59^ aa8, S50, a86. 
of House of Lords, new patents of peerage 

entered there, 193. 
citations from, 60, 228, 956. 
Judges : 
of High Court of Justice, why smnmftnwl 

to House of I^nds, 45, 49, 5a. 
form of summons, 51. 
cannot sit in House of Commons, 70. 
try disputed returns, 153. 
Jury: 
freedom from serving on, a pririlige of 

members of House of Commons, 138. 
and of House of Loni% 303. 



Kentish petitiofn : 3x4. 
Xnight of the shire : 

two to be chosen from each shire, 94. 

form of writ for election of, 53, 54. 

mode of election, 89, 90. 



I.. 

Iiawyer : 

might not sit as knight of shirs, 84. 
IieaMhold: 

a qualification for oovnty franchisek 93, 
102, Z04. 



INDEX. 



331 



Legislation: 
oomtrol ov«r it aoqoJred by CommoiiB, i8. 
prooefls in theory and practice, 33. 
^ected by Crown in Parliament, 3a, 

37. 
limited to Crown, Lords and Comxnons, 

44- 

charafiw of in medi»Tal and modem 
times, 4^, 47* 

not sole fanction of Parliament, 47, aoS, 
399. 

rights of Commons to share in, an. 

iirterferenoe with by Crown, an, aij. 

ptocess of, by petition, 314. 

by bill, 319. 
Letters missive : 

for election of bishop^ 148. 
Letters patent : 

a mode of promnlgating ordinanoei^ an. 
Libel: 

law of, applied to publication of debates, 

147. 
or of papers, 146, 161-3. 

Life peerage: see Peerage. 

Loan: 

fiveed loans to king, 377, 379. 

■hares in government loans a mode of 
eoff upU ng members, 391. 
Looal bills: 

a part of priyate bill legislation, 340. 
Loons standi: 

to oppose a ptiyate bill, 343. 
Lodger: 

qualification of for Parliamentary fran- 
chise, loi, I03, 106, 108. 

must daim his vote annually, 119.^ 
London City : 

qualification for Parliamentary franoluse 
in, 107. 

representation of, Z13. 

conflict with House of Commons in 1771, 

, 145. 

Long Parliament : 

its dealings with taication, 33, 379, aSa. 
abolished criminal jurisdiction of Council, 

33, 363. 
finrbad publication of debates, 143. 
loovided for frequent summons of Parlia- 
ment, 346. 
Iiord Clerk Begister : 
of Scotland, his duties as to election of 
Scotch representative peers, 56, 195. 
liOrd High Steward ; 
Court of, 199. 

presides at impeachment of peer, 304. 
Ziords, House of: see Peer, Peerage : 
first note of distinction from Commons, 

4a. 
its connection with magnum coneilium, 

45- 



Iiords, House of : 
consequent oonfosion of functions, 3I3, 

ai4, 315, 3t8. 
not identical with Peerage, 168. 
its functions, 169. 
qualifications for, 170; how created, 17^, 

»93» i95» i97> 198, aoa 
its origin, 170-173. 

disquidifications for summons, 1 88-191 ; 
for sitting and voting, 1 91-193. 

mode of introduction to, 193, 301. 

pdidal duties, 199, 300, ao6, 307, 306-9. 

influence exercised on by Crown, 396-7. 
Lords of Appeal : 

their qualification, aoa 

character of their peerages, 30X. 
Lords Bpizitual : see Bi^iop. 
Iiords Temporal : 

of whom they consist, 170. 
Iiunatio: 

disqualified for electian to Commons 
House, 71. 

how £Kr in case of sitting member, 71, 7^ 

for pariiamentaiy frannhise, iia 



Maoe : 

symbol of Speaker's <^Sce, 55, 60, 13a. 
Magna Oharta. See Index of Statutes. 
Magnum Oonoilium : 

its relation to House of Lords, 43, 43, 
Marquess: 

title of, 30I. 
Mary: 

her impositions on merchandise, 377. 

her additions to representation, 385. 
Master of the Bolls : 

may not sit in Commons House, 76. 
Medioal Belief: 

not a disqiudification for Parliamentary 
firanchise, iro 
Meeting of Parliament : eee Parliament. 
Members : 

of House of Commons, writ for election 

of, Sh 53- 
when sunmioned to bar of Lords, 55, 

356. 
evidence of election, 56. 
oaths required of, 57, 58, 83, 88. 
disqualifications of, 71-83. 
extinct disqualifications o^ 83, 84. 
cannot resign seat, 84. 
wages of, 1 13. 
privileges of, 139-167. 
expulsion of, 156. 
corruption of by Crown or its ministers, 

388 et sq. 
Memorial : 
of opponents of a private bill, 341. 



332 



INDEX. 



MeMages : 

from Grown to Parliament, I50, 251. 

from one Hoase to another, aa8, 229. 
Middlesex* Barl of: 

his impeachment and sentenoe, 19a. 
Hinlstera of the Crown : 

early attempts of Conmions to control 
their action, 17. 

how far a check on feudal king, 19. 

means of bringing them into hiumony 
with Commons, 33. 

represent dominant party, 27. 

their joint responsibility, 28. 

criticism of them by Parliament, 31 8, 319. 

ultimate control over them, 319, 320. 
Minorities : 

representation o( 117, 123-129. 
Mist: 

case of, 301. 
Mitchel, John : 

case of, 78, 146. 
Money biU: ms Bill. 
Moravian: 

allowed to affirm in lieu of oath, 57, 81, 
88. 
Motions : 

notice of, 221, 223. 

for returns, 221. 

for leave of absence, 222. 

in respect to public bills, 224. 

of grants of public money, 232, 233. 

that Mr. Speaker leave the chair, 235. 

KatnraliBation : 
its efifect in conferring political privileges, 

73. "6. 
Vewark : 

last borough enfranchised by Crown, 288. 
Nomination : 

of candidates for Parliamentary election, 
121. 
TSfon obstante : 

meaning of term, 270. 
Notice : 

of motion, 220, 221, 223. 



O. 

Oath: 
of office imposed on ministers of the 

Crown, 17. 
of alliance required of members of 

both Houses, 57, 201. 
result of not taking in Lords, 193; in 

Commons, 57, 58, 80, 81. 
oaths formerly required, 57, 79, 80. 
effect of taking without religious belief, 

83. 



Oath: 

jniisdiotion of House as to right of 
member, 154, 155. 

of court as to penalties for non-com- 
pliance with Statute, 165. 

required of Irish peer before voting for 
representative peer, 197. 

oath administered by Parliamentary 
Committee, 316. 
Ooonpation : 

a qualification for franchise, 91. 

in counties, 93. 

in boroughs, 95. 

present extent of qualification, 104, 105, 
108. 
Ooonpier : 

various senses of term, 103. 

joint occupiers, 1 1 1. 

need not claim to get on register, 1 18. 
Offloe: 

oath of, 1 7. 

a disqualification for Commons Honae 
by Act of Settlement, 28, 74. 

by Act of Anne, 75, 76. 

acceptance of vacates seat, 62. 

objects of disqualification, 77, 290, 291. 

a means of resigning seat, 84. 

a means of influencing members, 290. 
Order: 

in Council to issue writs, 47. 

form of, 48. 

of the day in House of Commons, 223. 
Ordinance: 

how different from Statute, 211, 21a. 

an independent legislative act of Crown, 

Overseer : 

his duties in making up register, 118. 
Owner: 

of land, his qualification for frtuuchise, 9a, 

93- 

P. 
Pardon: 

removes disqualification of conviction, 78, 
110. 

not pleadable in bar of impeachment, 305. 

prerogative of, exercised after senteiicf 
or impeachment, 193, 305. 
Parliament : 

growth of its powers, 21-25. 

meeting of, 39. 

alone can make laws, 41 ; or grant sup- 
plies, 277, 281. 

its duties other than legislative^ 41, 293 
et sq. 

Simon de Montfort's Parliament, 43, 

the Model Parliament, 41, 112. 

an assemblage of estates, 44. 

objects of summons^ 47, 215. 



INDEX, 



333 



Parlittment : 

form of opening, 55, 59. 

diBBolution of, 63, o^-^'J, 

prorogation' o^ 64. 

bow affected by demise of Crown, 66, 67. 

regnlaritj of Bmnmons how tecmred, 246, 

3»9» 330- 
regnlarity of session how secured, 347. 

management of by ministers, 397 et sq. 
Parochial relief: 

how far a disqualification for ezerdse of 
franchise, no. 
Patent: 

peerage created by, 174. 

devolntion of dignity conferred by, 179. 

explanatory of writ, 188. 

of new peer, read and entered on jour- 
nals, 193. 
Peerage : see Iiords, Honse of: 

law relating to, rests on custom, 68, 175. 

a disqaalification for House of Commons, 

73. 149- 
and for franehise, 109. 

exceptions in case of Irish peers, 73, 109. 

fmioiions of, 169. 

ranks of, 174. 

additions to, how limited by Acts of 

Union, 177, 178. 
by mlee of devolution, 179, 187. 
for life, rules as to, 176, 189, 190. 
alienation of, 175, 176, 182, 183. 
descendibility of, 176, 187. 
claims of, how made, 194; by whom 

adjudicated on, 304. 
Peer of Parliament : 
of United Kingdom, 45 ; how summoned, 

49- 

of Scotland, representatiye, 53, 63, 67, 

178, 185, 194-196. 

of Ireland, representative, 50, 53, 67, 
196, 197. 

Spiritual, how summoned, 50, 53, 199. 

number of, 186, 199. 

when entitled to summons, 186-197. 

whether ennobled in blood, 199. 

power of resignation, 300. 

as Lord of Appeal, 3oo, 30Z. 
Petition : 

a preliminary to legislation, 315. 

as mode of introducing private bills, 340. 

receivers and triers of, 340, 310. 

right of subject to make, 373. 

legislation concerning, 313. 

history of, 309-311. 

modem rules respecting, 313. 
Petition of Bight : 33, 379, 381. 
P6U: 

mode of holding at Parliamentary elec- 
tion, 94, 131, 133. 

in Universities, 133. 



Pnemnnientes olause : 

mode of summoning estate of clergy, 44. 

form of, 44. 

instance of, 139, n. i. 
Precedence : 

of Speaker, 131. 

of peers, 301, 303. 
Precept : 

issued by sheriff to counties and boroughs, 

54, 89- 
by clerk of the peace to overseer, 118. 
Prerogative : 
limitations on, 34. 
exercised in summons of Parliament, 

343. 
in prorogation, 64. 
in dissolution, 65. 
compared with privilege of Parliament, 

159- 
PrittleweU : 

petition from, 315. 
Private bill : tee Bill. 
Privilege : 

of Commons, 139-167. 

demanded by Speaker, 56, 61, 130. 

are matter of common law, 68, 1 39. 

collision with courts of law, 139, 130, 
J59-i<55. 

mode of enforcement, 130, 134. 

of Lords, 303-307. 
Privy Council : 

as represented in Star Chamber, 33, 

307. 
as constituted by Sir W. Temple, 33. 
its relations to Cabinet, 37-39. 
its interference with elections, 386. 
Procedure : 
of House of Commons, reg^ulation by 

House, 8i, 153-156. 
in l^slation, antiquities of, 309-330. 
Proclamations : 
use of to dissolve and summon Parlia- 
ment, 47, 65. 
form of, 48. 

to prorogue Parliament, 64 ; form of, 64. 
a mode of legislation by Crown, 313, 361, 

363. 
Statute of, 360. 
case of, 363. 

legal and illegal, 363, 364. 
Property: 

qualification for members of Commons 

House, 83, 84. 
for franchise, 89, 91 ; in Scotland, loi ; 

in Ireland, 103. 
present qualifications in right of, 103, 

104, 107. 
Prorogation : 
its effect on business of Houses, 64. 
on impeachment, 305, 



334 



INDEX. 



Prorogation : 

on impriioniiM«t> by otdar of Home of 
CSommoDB, 157. 

form o^ 64. 
Protest: 

record of in House of Lordi, ao6. 



Yoting by in House of Lords, 2051 mS» 
Public BiU : MB Bill. 
Public Business : see Houae of Ctommons. 
Purbeok peer«te ; 

case of, 170. 

Quaker: 

allowed to affirm in lieu of taking oath, 
57, 80, 81, 88. 
Question : 
in House of Conimoii% 333. 



Bate: 

payment of, in donneetion with franchise, 
100, loi, 105, 106, no. 

with making up register, 118, 119. 
BeceiTors: 

of petitions, 240, 31a 



Court of, whether House of Oonmioiis is 
such, 157, 158. 

matter of, title of peer must originate in, 
176. 
Bef orm bill : 

its effect on county franchise, 93, on 
borough franchise, 99. 

on distribution of seats, XI4. 
Begenoy bill, 255. 
Begistration : 

necessity for, 117; procea d, xi8, 119; 
condufliyeness o^ 119, xaa 
Beligion: 

bills relatiug to, 226. 
Beporting : 

of debates, 144, r45, 14S. 
Bepresentation : 

began before Magna Gharta, 43. 

early instances o^ 43. 

of counties before Reform Act, lis. 

of borou^is, 113. 

effect of Reform Act, 114. 

of Redistribution Act^ 1x5, 1x6. 

of minorities, 123-139. 
BapreeentatiDn of the Paople Acts, 1 867, 

1 884. See Index of Statutes. 
Besidenoe: 

in constituency, a qualification for mem- 
bership of Commons, 83, a6(L 

for franchise, 89, 91, 9a. 

when a qualification in towns, 94, 95. 

distinguishable frtim oooopation, X03, X05, 
X06. 



Besolution of House of Oammons : 
effect on disability arising from eonrio- 

tion, 78. 
on the franchise, 95. 
on prooednre, 154, 155. 
cannot affebt the law, 8x, X54, 155, i6a, 
X63, 165. 



writs issued to, 49, 90. 

how far disqualified for ihtfichise^ 109. 

when he may reject Totos, laow 

his duties at an election, isi. 
BcTcnue : 

of Crown hereditary, 17. 

ordinary and eztmovdiBaiy, 23. 

how granted, 236. 

as provided by Ooannon law hew Ut 
suffident, 276. 
Bichardll: 

resigns right to allegiance, lo. 

his grants of dispensation, 265, 266. 
Boman Catholic: 

disabiUties of, 80^ 88. 
Snthyn peerage : 
ot 176. 



Scot and lot : 
payment of, a qoalifloation tot boroigh 
franchise, 94. 
Scotland: 
Act of union with, 30, 112, 104. 
reprssentatiTe peera of, 5a, 62, 67, 178, 

185, 194-196. 
Parliamentaiy franchise in, lox, 105. 
representation of in Commons, 1x2, 114, 

II5- 
fteptennial Act: 

effect of, 65. 

reasons for passing, 66. 
Session : eee ParUament. 
Sessional order; 

nature of, 24X. 
Sex: 

a disqualification for PariiameDtuy 
frandiise, xo8. 
Sheriff: 

writs addressed to, 42, 44, 51, 53. 

his duties at medissval elections, 45, 89, 

as to returns, X49, X5a 

disabilities o^ 74. 

attempts to inflnwioe, 285, 286. 
Ship-money : 

case of, 280-283. 
Shire : set Oonntj. 
Shirley, Sir Thomas : 

case of, 137. 
SignmanuiJ: 

message under, 250. 



IKDEX. 



S36 



of HoDM of OomgMims Ui eleotkni, 55, 

60,68. 
his mptawwl hj Grofwn, 56, 68. 
his daties, 55, 132, 143; in oomiiniiiiofr- 

tian wiUk Cnywn, 61, 133, 350. 
demands priYileget of CommoOB, 56) 61, 

'35. 
umes wamiii for new writ, 58, 145. 

Ids preoedenoe^ 131 ; hu deputy, 133 ; hlB 
oomuel, 343. 

awMilt upon, 14X, 155. 

motion that be * leave the ohair/ M5. 

of Home of Lorde, ao3, 303. 
Speech firom the Tbrone : 

deolaree oaoM of eommoaisg PorilaiMnt, 
58. 

matters not mentioned therein may be 
discoiBed, 58, 63. 

not a legal neoeenty, 69. 

a mode of oommnnication between Crown 
and Parliament, 348, 349. 
BpfTitiiaUtiea: 

gaardian of, 199. 
Standing Order : 

as to daily business of Honse, 331, 344. 

as to bills oonoeming religion and trade, 
336. 

as to money bills, 336, 333, 334. 

as to private bills, 340, 341. 
Staple: 

ordinance of, 303. 
Star Gluunber : 

judicial aspect of Privy Council, 33, 

307. 
iti use and abuse, 307, 308. 
enforces proclamations, 361, 363. 
Btatate. See Index of, at commencement. 
St. John : 
oonnael for Hampden in case of ship- 
money, 381. 



presence of, in Honae, 143, 143, 
Strode: 

case of, 139, 141. 
Subsidy: 

its expenditmv, how controlled, 17. 

separately granted by clergy and laity, 

44- 
Smnmona : see Parliament* Writ. 

Supply: 

committee at, 334, 335. 

need of, how far a security for sitting of 

Parliament, 347. 
^ypropriation of, the real security, 347, 

319- 
Snpremaoy : 

oath of, 57, 80, 88. 

Suapendlns power : 371, 373. 



Taxation : 

mode of, 44, 370. 

claim of Crown to levy, 373 et leq. 
Tenants in chief: 

alone represented in Common Council of 
the Charter, 4a, 171, 173. 
Tenure; 

barony by, 183, 183, 184. 

a qualification for frandhise in some 
towns, 94, 95. 
Thomas v. ScmU : 

case of, 366. 
Tonnage and Foimdage : 

when granted annually, 374. 

provision for coast defenoev aSa 
Trade: 

bills relating to, 336. 

king's prerogative rdating to, 377. 
Treason: 

conviction of, creates disabilities, 78, 193. 
Triennial Act : 

reasons for passing, 65. 



U. 



Undertakers : 

a court party in Parliament, 387. 
Union: 

acts of. See Index of Statutes. 
Universities : 

ropresentation of, 116. 

qualification for franchise, 107. 

mode of voting, 133. 



V. 

Veto: 

on legislation, exeroiseable by Crown, 9, 
3a, 354. 
Vicar-General : 

his duties at confirmation of bishop, 198. 
Viscount : 

title of, 303. 

W. 

Wages: 

of members, 113, 333. 
Walpole, Sir B. : 

his views on roport of debates, 144. 

his mode of keeping party discipline, 141, 

388, 393. 

his oOTrespondence with Henry Pelham, 

389, 393. 
Waaon v. TValter : 

case of, 147. 



836 



JNDBX. 



Ways and Means : 

oommittee of, 235, 936. 

its chairman, as deputy Speaker, 133. 

his duties, 235. 
Wensleydale peerage : 

case of, 188. 
-WiUiamlll: 

his dislike of large councils, 37. 

his use of the veto, 65, 354. 

his summons of Convention, 67. 
WiUiam IV: 

used personal influence in Lords, 397. 
Witness : 

member of House of Ck>mmons need not 
attend as, 138. 

in case of private bills, 341, 343. 

oath administered to by Parliamentary 
Conmiittee, 316, 



1 



Writ: 
of summons to Commune ConciliniD, 43, 

to Parliament, carder in Council to inne, 

49- 

to whom issued, 49. 

when returnable, 49. 

forms of, to temporal peer, 49. 

to spiritual peer, 50, 53, 199. 

to judge of High Court, 51. 

to returning officer, 51, 53. 

effect of demise of Crown upon, 66. 

creation of barony by, 173, T76. 

devolution of dignity so ooofened, 

179. 
of new peer entered on journals, 193. 
how applied for, 194. 



THE END. 



COERIGEXDA. 

Page 8, dele full stops after second and third marginal references. 

3y 45, marginal reference, ^br i6 Car. II read i6 & 17 Car. II. 

„ 64> j> n /or 7 Hen. IV, c. 5, rearf 7 Hen. IV, c. 15. 

^ 65, line i7,yV)r i Geo. I, c. 31, read i Geo. I, st. 2, c. 38. 

„ 78, last line,/(W s. 3 read s. 2. 

„ 84, marginal reference, /or 34 & 35 Vict c. 6, read 34 & 35 Vict. c. 116. 

„ 94, „ „ for 27 Hen. VI read 23 Hen. VI. 

„ 109, „ „ for 35 & 36 Vict. c. 32 read 35 & 36 Vict. c. 33. 

„ 122, „ „ for 40 & 41 Vict. rca<;? 41 & 42 Vict. 

„ ,r „ » /or c. 33 r a^ 53. 

,, 161, last line, /or Patterson read Patteson. 

„ 219, line Sjfor close read closer. 



ADDENDA. 



Page 71. A bill is now before Parliament providing for the vacating of 
a seat held by a person of unsound mind. It is proposed that in the case of 
any member being received into an asylum or other place as a lunatic, in- 
formation should be given, from various persons responsible for his detention, 
to the Speaker. The Speaker should thereupon obtain a report from the 
Commissioners in Lunacy ; at the end of six months from the first report the 
Speaker should obtain a second report, and if this be to the effect that 
the member is still of unsound mind his seat is to be vacated and a new writ 
to issue. 

Page 72. The judgment recently delivered in the Stepney Election Petition 
does not affect the incapacity of an alien ; it merely decides that certain per- 
sons claiming to be British subjects are aliens. A subject of the Kiug of 
Hanover, who was also a British subject when the king of this country was 
also king of Hanover, ceases to be a British subject and incurs the disabilities 
of an alien when the Crowns are severed. The matter would properly fall 
under the head of Allegiancei and will be dealt with hereafter. 

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